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McBride v. United States

United States District Court, W.D. North Carolina, Asheville Division

June 26, 2019

DALLAS TRAVOLTA MCBRIDE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MARTIN REIDINGER UNITED STATES DISTRICT JUDGE

         THIS 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].

         I. PROCEDURAL BACKGROUND

         Petitioner 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).

         Petitioner 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.

         Petitioner 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].

         Because 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.

         II. DISCUSSION

         Section 2255(f) 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 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 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 ...

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