United States District Court, W.D. North Carolina, Asheville Division
REIDINGER 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. 1].
pled guilty on December 16, 2015, to possession of a firearm
by a felon, in violation of 18 U.S.C. § 922(g)(1).
[Crim. No. 1:15-cr-44-MR-WCM-1 (“CR”), Doc. 50:
Judgment, Doc. 29: Acceptance and Entry of Guilty Plea]. On
June 28, 2016, this Court sentenced Petitioner to 40
months' imprisonment. [CR Doc. 50]. Judgment was entered
on July 7, 2016, and Petitioner did not appeal.
[Id.]. Petitioner's conviction, therefore,
became final fourteen days later for purposes of Section
2255(f) when the time for filing a notice of appeal expired.
See United States v. Clay, 537 U.S. 522, 524-25
(2003) (when a defendant does not appeal, his conviction
becomes final when the opportunity to appeal expires); Fed.
R. App. P. 4(b)(1)(A).
placed his Section 2255 motion to vacate in the prison system
for filing on February 25, 2019, and it was stamp-filed in
this Court on March 1, 2019.
brought three claims in his motion to vacate, two of which
related to Petitioner's sentencing. First, he claimed
that his sentence computation was incorrect, as he should
have been given credit for time served based on his
imprisonment in a county jail for 16 months for a State gun
charge while on a federal detainer. Second, he claimed that
this Court should have held that Petitioner's state
sentence was to run concurrently to his federal sentence.
[Doc. 1 at 4, 7, 8]. These claims were dismissed by the Court
on initial review for the reasons stated in that Order.
[See Doc. 2]. Plaintiff's third claim was that
he received ineffective assistance of counsel related to his
sentencing. [Doc. 1 at 5]. As grounds for his ineffective
assistance claim, Petitioner stated that his “counsel
of record did not petition the courts to apply relevant
sentencing guideline to federal sentence before sentencing on
June 28, 2016. Counsel did not object to sentence being
improperly imposed without consideration of pertinent
sentence guideline.” [Doc. 1 at 5].
it appeared that Petitioner's ineffective assistance
claim was untimely under Section 2255(f), the Court granted
petitioner 30 days in which to explain why this claim should
not be dismissed as untimely, including any reasons why
equitable tolling should apply. [Doc. 2 at 3-4]. Petitioner
timely filed a Response. [Doc. 3]. The Court addresses the
Petitioner's response here.
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(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