Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sherifi v. United States

United States District Court, E.D. North Carolina, Southern Division

May 22, 2019

HYSEN SHERIFI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          W. EARL BRITT, SENIOR U.S. DISTRICT JUDGE

         This 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.[1] (DE # 394.)

         In 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.

         On 19 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).)

         The 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).

         A 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 final;
(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 governmental action;
(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.

Id.

         Here, 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.

         Petitioner 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.