United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court following receipt of
Petitioner's response to the Court's Order [Doc. 11]
requiring Petitioner to explain why her 28 U.S.C. § 2255
motion to vacate [Doc. 1] is not time-barred and, if it is
time-barred, why equitable tolling should apply. For the
following reasons, the Court dismisses the § 2255
petition as time-barred.
Petitioner Patricia Diane Clark pled guilty to conspiracy to
commit wire and mail fraud in violations of 18 U.S.C.
§§ 1349, 2326(2)(A) and (B); wire fraud and aiding
and abetting the same in violation of 18 U.S.C. §§
1343, 2326(2)(A) and (B), and 2; and conspiracy to commit
money laundering in violation of 18 U.S.C. § 1956(h).
[Criminal No. 3:13-cr-163-FDW, Doc. 60 (Judgment)]. On August
11, 2015 this Court sentenced Petitioner to 130 months of
imprisonment and ordered payment of restitution in the amount
of $642, 032.15. Judgment was entered on August 24, 2015, and
Petitioner did not appeal. [Id.]. Petitioner placed
her original petition in the prison system for mailing on
July 28, 2018. [Doc. 1]. On March 3, 2019, Petitioner placed
an amended petition in the prison mailing system. [Doc. 10].
Petitioner's sole claim for relief relates to the ordered
payment of restitution and sentencing points based on the
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the motion to vacate can be resolved without a
response from the Government and without an evidentiary
hearing based on the record and governing case law. See
Raines v. United States, 423 F.2d 526, 529 (4th Cir.
1996, Congress enacted the Antiterrorism and Effective Death
Penalty Act (the “AEDPA”). Among other things,
the AEDPA amended 28 U.S.C. § 2255 by imposing a
one-year statute of limitations period for the filing of a
motion to vacate. Such amendment provides:
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
of-(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f).
as noted, judgment was entered in this action on August 24,
2015, and Petitioner did not appeal. [3:13-cr-163-FDW, Doc.
60]. Petitioner's conviction, therefore, became final for
purposes of Section 2255(f) fourteen days after judgment was
entered, on September 7, 2015. See Fed. R. App. P.
4(b). Petitioner did not file her Section 2255 motion to
vacate, however, until nearly ...