United States District Court, E.D. North Carolina, Southern Division
EARL BRITT, SENIOR U.S. DISTRICT JUDGE
matter is before the court on the government's motion to
dismiss petitioner's 28 U.S.C. § 2255 motion. (DE #
389.) Petitioner filed a memorandum in
opposition. (DE # 394.)
2012, a jury convicted petitioner of multiple offenses
arising out of his conspiracy to kill various persons,
including government witnesses. By judgment entered 15 May
2013, the court sentenced petitioner to a total term of life
imprisonment. Petitioner did not appeal.
October 2018, he filed a § 2255 motion. (DE # 379.)
Because the motion did not substantially follow the standard
form, the court directed the Clerk to send a copy of the
§ 2255 standard form to petitioner and directed
petitioner to return the completed form. (DE # 381.)
Petitioner filed the proper form. (DE # 382.) He seeks to
vacate his convictions on the grounds that (1) the
court's failure to determine his competence to stand
trial violates his due process right to a fair trial and (2)
the indictment is multiplicitous in violation of the Double
Jeopardy Clause. (DE # 379, at 3-10; see also DE #
382, at 4 (setting forth ground for claim by referring to
earlier filed motion).)
government argues, pursuant to Federal Rule of Civil
Procedure 12(b)(6), the § 2255 motion should be
dismissed for failure to state any claim for relief.
Specifically, the government contends petitioner's §
2255 motion is untimely because petitioner did not file the
motion within § 2255(f)'s limitations period.
Generally, a court will not reach the merits of a timeliness
defense on a motion to dismiss under Rule 12(b)(6).
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007). However, a court may do so “in the
relatively rare circumstances where . . . all facts necessary
to the affirmative defense ‘clearly appear on the
face on the complaint[, ]'” Id.
(citation and alteration omitted).
one-year statute of limitations applies to a motion filed
under § 2255. 28 U.S.C. § 2255(f). That limitations
period begins running 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, if that right has been newly
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.
the only relevant date is when petitioner's judgment of
conviction became final. Because petitioner did not appeal
from the judgment entered 15 May 2013, his conviction became
final 14 days later, on or about 29 May 2013. See
Fed. R. App. P. 4(b)(1)(A)(i); United States v.
Diallo, 581 Fed.Appx. 226, 227 (4th Cir. 2014)
(recognizing that the petitioner's convictions became
final when the 14-day period for filing a direct appeal
expired). Petitioner filed his § 2255 motion more than
five years after that date.
recognizes he did not file his § 2255 motion within the
applicable period. (See DE # 379, at 2.)
Nonetheless, he relies on the doctrine of equitable tolling
to make the motion timely. (Id.)
Equitable tolling of petitions for collateral review is
available only when a defendant demonstrates “(1) that
he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Under this court's precedent,
equitable tolling is appropriate in those “rare
instances where- due to circumstances external to the
party's own conduct- it would be ...