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
pro se Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.C. § 2255, (Doc. No. 1).
Judgment in the underlying criminal case was docketed on
March 7, 2018. (3:17-cv-165, Doc. No. 24). Petitioner did not
appeal. He filed the instant § 2255 Motion to Vacate
pursuant to the prisoner mailbox rule on September 6,
2019. (Doc. No. 1).
one-year statute of limitation applies to motions to vacate
under § 2255, which runs 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.
28 U.S.C. § 2255(f).
otherwise time-barred petition is entitled to equitable
tolling in “those rare instances where-due to
circumstances external to the party's own conduct-it
would be unconscionable to enforce the limitation against the
party.” Hill v. Braxton, 277 F.3d 701, 704
(4th Cir. 2002) (citing Harris v.
Hutchinson, 209 F.3d 325, 330 (4th Cir.
2000)); United States v. Prescott, 221 F.3d 686, 688
(4th Cir. 2000)(“§ 2255's
limitation period is subject to equitable modifications such
tolling of petitions for collateral review is available only
when the petitioner demonstrates “(1) the has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S
631, 649 (2010); see Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005) (“Generally, a litigant seeking
equitable tolling bears the burden of establishing two
elements.”). The second prong of the equitable tolling
test is met “only where the circumstances that caused a
litigant's delay are both extraordinary and
beyond its control.” Menominee Indian Tribe of Wis.
v. United States, 136 S.Ct. 750, 756 (2016). Under the
Fourth Circuit's precedent, equitable tolling is
appropriate in those “rare instances where - due to
circumstances external to the party's own conduct - it
would be unconscionable to enforce the limitations period
against the party and gross injustice would result.”
Whiteside v. United States, 775 F.3d 180, 184
(4th Cir. 2014) (quoting Rouse v. Lee,
339 F.3d 238, 246 (4th Cir. 2003) (en
banc)) (citations omitted).
present record, it appears that Petitioner's § 2255
Motion to Vacate is subject to dismissal as untimely because
it was filed more than one year after his conviction and
sentence became final. The Court will afford Petitioner the
opportunity to explain why his § 2255 petition is
timely. See Hill v. Braxton, 277 F.3d 701
(4th Cir. 2002).
IS, THEREFORE, ORDERED that Petitioner shall file a
Response within 14 days from entry of this
Order which explains why his § 2255 Motion to Vacate is
timely. Failure to comply with this Order will probably
result in the dismissal of the § 2255 Motion to Vacate
with prejudice as time-barred.