United States District Court, E.D. North Carolina, Eastern Division
SHERRY D. WILLIAMS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
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 #
113.) Petitioner filed a memorandum in opposition, (DE #
118), and a “motion granting relief, ” (DE #
2015, pursuant to a plea agreement, petitioner pled guilty to
false and fraudulent claims against the United States and
aggravated identity theft. In 2016, the court sentenced her
to a total term of 75 months imprisonment. Petitioner
appealed. By judgment entered 17 November 2016, the Fourth
Circuit Court of Appeals dismissed the appeal. Petitioner did
not file a petition for a writ of certiorari.
January 2019, petitioner filed her § 2255 motion. (DE #
105.) 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 her
to return the completed form. (DE # 106.) Petitioner filed
the proper form. (DE # 107.) She challenges her sentence,
claiming (1) the court sentenced her in violation of due
process; (2) counsel rendered constitutionally ineffective
assistance by failing to ensure the total offense level and
relevant conduct were correctly calculated at sentencing; (3)
prosecutorial misconduct at sentencing; and, (4) her sentence
violates the law. (Id. at 4-8.)
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.
petitioner's judgment of conviction became final when the
time for filing a petition for a writ of certiorari expired,
Clay v. United States, 537 U.S. 522, 527 (2003)
(“Finality attaches when this Court affirms a
conviction on the merits on direct review or denies a
petition for a writ of certiorari, or when the time for
filing a certiorari petition expires.” (citations
omitted)); see also Sup. Ct. R. 13(1) (“[A]
petition for a writ of certiorari . . . is timely when it is
filed with the Clerk of this Court within 90 days after entry
of the judgment.”); id. R. 13(3) (“The
time to file a petition for a writ of certiorari runs from
the date of entry of the judgment or order sought to be
reviewed, and not from the issuance date of the mandate (or
its equivalent under local practice).”), on 15 February
2017. Petitioner filed her § 2255 motion nearly two
years after that date.
§ 2255 motion, petitioner requests that the limitations
period be equitably tolled. (DE # 105, at 5; DE # 107, at
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 ...