United States District Court, M.D. North Carolina
RECOMMENDATION OF UNITED STATES MAGISTRATE
ELIZABETH PEAKE, UNITED STATES MAGISTRATE JUDGE
in this action brings a Motion [Doc. #96] to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
He was convicted in this Court of one count of distribution
of cocaine hydrochloride in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C) and one count of distribution of
cocaine base in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B). Petitioner received concurrent sentences 262
months of imprisonment to be followed by six years of
supervised release for the cocaine hydrochloride conviction
and eight years of supervised release for the cocaine base
conviction. Petitioner pursued an unsuccessful direct appeal
and prior motion under § 2255 in case 1:02CV324.
Petitioner later filed a second § 2255 motion in case
1:12CV934 in which he raised a single claim stating
“[p]ursuant to the Fourth Circuit's decision in
United States v. Simmons, 649 F.3d 237 (4th Cir. N.C. 2011)
(en banc), [Petitioner's] sentence should not be enhanced
pursuant to Title 21 U.S.C. 851. See memorandum of
Law.” (Second § 2255 Motion [Doc. #85] § 12,
Ground One.) He also filed a Memorandum [Doc. #86] arguing
that claim. Following the filing of a Motion to Dismiss,
Petitioner entered into a Joint Stipulation of Dismissal
[Doc. #93] agreeing to dismiss the case without prejudice,
which the Court allowed by written Order [Doc. #94].
than three years later, Petitioner submitted what appear to
be unsigned copies of his Second § 2255 Motion and
Memorandum, along with this Court's Order allowing the
dismissal of that Motion without prejudice, to the United
State Court of Appeals for the Fourth Circuit in order to
seek permission to file a second or successive § 2255
Motion. That Court granted permission stating that Petitioner
“made a prima facie showing that the new rule of
constitutional law announced in Johnson v. United
States, 135 S.Ct. 2551 (2015), and held to apply
retroactively to cases on collateral review by Welch v.
United States, 136 S.Ct. 1257 (2016), may apply to his
case. See In re Hubbard, __ F.3d __, No. 15-276,
2016 WL 3181417 (4th Cir. June 8, 2016).”
Court therefore entered an Order (Text Order dated Sept. 14,
2016) staying this matter in light of Beckles v. United
States, No. 15-8544, 2016 WL 1029080 (U.S. June 27,
2016), which was then pending before the United States
Supreme Court. After the Supreme Court decided the case in
Beckles v. United States, U.S.____, ____ 136 S.Ct.
2510 (2016), the Court initially lifted the stay, but later
entered an Order [Doc. #111] imposing another stay in light
of United States v. Brown, No. 17-9276 (U.S), which
was then pending before the United States Supreme Court on a
petition for certiorari. The Court ordered that any Response
by the Government be filed within 30 days of a decision in
Brown. The Supreme Court later denied certiorari in
Brown v. United States, U.S.___, ___ 139 S.Ct. 14
(2018). The Government then responded with a Motion to
Dismiss [Doc. #112]. Despite being notified of his right to
file a Response, Petitioner did not file any opposition to
the Motion to Dismiss. Having considered the filings, the
Court will recommend that the stay be lifted and will address
the parties' pending Motions.
pending § 2255 Motion raises a single ground for relief
in which he challenges his sentence based on United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011). He
contends that a sentencing enhancement applied to him under
21 U.S.C. § 851 is no longer valid following
Simmons. Despite having been given permission to
file his § 2255 based on Johnson v. United
States, ___U.S.___, 135 S.Ct. 2551 (2015), at no point
does Petitioner appear to raise or argue a claim based on
requests dismissal on the ground that Petitioner's Motion
was filed outside of the one-year limitation period imposed
by the Antiterrorism and Effective Death Penalty Act of 1996,
P.L. 104-132 (“AEDPA”). 28 U.S.C. § 2255(f).
The AEDPA amendments apply to all motions filed under §
2255 after their effective date of April 24, 1996. Lindh
v. Murphy, 521 U.S. 320 (1997). Interpretations of 28
U.S.C. §§ 2244(d)(1) and 2255 have equal
applicability to one another. Sandvik v. United
States, 177 F.3d 1269, 1271 (11th Cir. 1999).
§ 2255(f)(1), the limitation period runs from the date
when the judgment of conviction became final. Where a
petitioner files an appeal, finality has been construed to
mean when the petitioner may no longer seek further review
because of (1) the denial of a petition for certiorari to the
United States Supreme Court or (2) the expiration of the time
for seeking such review. Clay v. United States, 537
U.S. 522 (2003). Here, Petitioner filed a direct appeal,
which the United States Court of Appeals for the Fourth
Circuit denied on April 26, 2001, in United States v.
Hampton, 8 Fed.Appx. 171 (4th Cir. 2001). Petitioner did
not seek certiorari, which means that his conviction became
final when his time for seeking certiorari expired 90 days
later on July 25, 2001. See Sup. Ct. R. 13(1).
Petitioner's year to file under subsection (f)(1) began
to run on that date. Although Petitioner made a number of
filings in this Court over the years, he did not raise his
current claim for relief until at least 2012 when he filed
his Second § 2255 Motion. Petitioner's claim is
years out of time under subsection (f)(1). Only if another
subsection gives Petitioner more time to file will his Motion
2255(f)(2) requires an unlawful governmental action which
prevented Petitioner from filing the § 2255 motion.
Petitioner fails to allege or show that any unlawful
governmental action prevented him from filing his Motion.
Therefore, subsection two does not give Petitioner a longer
2255(f)(3) allows the limitation period to run from the date
on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized and
made retroactively applicable to cases on collateral review.
Petitioner relies on the case of Carachuri-Rosendo v.
Holder, 560 U.S. 563 (2010), along with Simmons
to argue that his claim is timely. However,
Carachuri-Rosendo does not constitute a substantive
change in law retroactive on collateral review. United
States v. Powell, 691 F.3d. 554 (4th Cir. 2012).
Likewise, Simmons, does not affect the statute of
limitations. United States v. Whiteside, 775 F.3d
180 (4th Cir. 2014). Therefore, subsection (f)(3) does not
render Petitioner's claim timely.
2255(f)(4) allows the limitation period to run from the date
on which the facts supporting the claims presented could have
been discovered through the exercise of due diligence.
Petitioner's claims in his Motion are based on facts that
existed and were known to him at the time his Judgment was
entered. Cases decided subsequent to Petitioner's direct
appeal do not constitute new facts affecting the statute of
limitations under subsection (f)(4). United States v.
Whiteside, 775 F.3d 180, 184 (4th Cir. 2014). Therefore,
this subsection also does not apply and Petitioner's
Motion is untimely.
the Supreme Court has determined that the one-year limitation
period is subject to equitable tolling. Holland v.
Florida, 560 U.S. 631, 649 (2010). Equitable tolling may
apply when a petitioner “shows ‘(1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and
prevented timely filing.” Id. (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
However, Petitioner makes no argument that equitable tolling
applies in his case. His claim is untimely and should be
THEREFORE RECOMMENDED that the prior stay be lifted, that
Respondent's Motion to Dismiss [Doc. #112] be granted,
that Petitioner's Motion [Doc. #96] to vacate, set aside
or correct sentence be dismissed, and that judgment be
entered dismissing the action.