United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Petitioner's
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody. [Doc. 3].
Court has conducted an initial screening of the petition
under Rule 4(b) and finds that it appears that the motion is
untimely. 28 U.S.C. § 2255(f).
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).
after a jury trial, Petitioner was found guilty of sex
trafficking of a minor in violation of 18 U.S.C. §
1591(a)(1) and (b)(2) and one count of committing a felony
offense involving a minor while under a duty to register as a
sex offender in violation of 18 U.S.C. § 2260A.
[Criminal No. 3:19-cv-00146 (“CR”), Doc. 58:
Judgment]. On January 25, 2017, this Court sentenced
Petitioner to 360 months of imprisonment on Count One, and
120 months of imprisonment on Count Two, to be served
consecutively, for a total of 480 months. [Id.].
Judgment was entered on February 28, 2017. [Id.].
Petitioner appealed, and on February 1, 2018, the Fourth
Circuit Court of Appeals issued a mandate on its decision
affirming Petitioner's conviction and sentence. [CR Doc.
74]. As such, for purposes of § 2255(f),
Petitioner's conviction became final on February 1, 2018,
and Petitioner had one year, or until February 2, 2019,
within which to file a § 2255 motion.
March 25, 2019, Petitioner filed a § 2255 Motion to
Vacate. Petitioner, however, failed to date and sign his
petition under penalty of perjury. [Doc. 1]. The Application
to Proceed In Forma Pauperis by a Prisoner that Petitioner
submitted with his March 25, 2019 Petition was dated March
20, 2019. [Doc. 1-1 at 2]. On March 29, 2019, the Court found
that Petitioner failed to sign his petition under penalty of
perjury and ordered that he must so sign the petition and
resubmit it to the Court within 20 days. [Doc. 2]. On April
9, 2019, the Petitioner's signed petition, which was
dated April 2, 2019, was filed with the Court. [Doc. 3]. Even
giving Petitioner the benefit of the date of his signature on
the IFP Application that he submitted with the original
petition, it, nonetheless, appears that Petitioner's
Motion to Vacate is untimely.
Court will grant Petitioner 20 days in which to provide an
explanation as to why the instant Section 2255 petition
should not be dismissed as untimely, including any reasons
why equitable tolling should apply. See Hill v.
Braxton, 277 F.3d 701, 706 (4th Cir. 2002); United
States v. Blackstock, 513 F.3d 128, 133 (4th Cir. 2008)