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).
pled guilty in the underlying criminal case to conspiracy to
distribute and possess with intent to distribute at least 5
kilograms of cocaine and 280 grams of cocaine base.
(3:17-cr-137, Doc. Nos. 62, 63, 64). In a Judgment docketed
on May 16, 2018, the Court sentenced Petitioner to 120
months' imprisonment followed by five years of supervised
release. (Id., Doc. No. 115). Petitioner did not
3, 2019, Petitioner filed a pro se Rule 35 Motion
that he specifically asked the Court not to recharacterize as
a successive collateral attack. (Id., Doc. No. 124).
The Court dismissed the Rule 35 Motion as untimely, informed
Petitioner that § 2255 allows a prisoner to move to
vacate a sentence “with certain limitations, ”
and directed the Clerk of Court to mail Petitioner a §
2255 form. (Id., Doc. No. 125 at 1).
instant pro se § 2255 Motion to Vacate is dated
October 2, 2019 and raises several claims of ineffective
assistance of counsel. With regards to timeliness, Petitioner
states “[t]imely file within the one year
Nunc-Pro-Tunc.” (Doc. No. 1 at 12).
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).
conviction becomes final pursuant to 2255(f)(4) when appeal
when the United States Supreme Court affirms a conviction on
the merits on direct review or denies a petition for a writ
of certiorari, or, if a petitioner does not seek certiorari,
when the time for filing a certiorari petition expires.
Gonzalez v. Thaler, 565 U.S. 134, 149 (2012);
Clay v. United States, 537 U.S. 522, 532 (2003).
Where no direct appeal has been taken, a conviction becomes
final pursuant to § 2255 when the time to appeal
expires. See Fed. R. App. P. 4(b)(1) (14 days for a
defendant to file a notice of appeal).
otherwise time-barred petitioner 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
as tolling.”). Equitable 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).
present record, it appears that § 2255 Motion to Vacate
is subject to dismissal as untimely because it was filed more
than one year after the conviction and sentence became final.
See 28 U.S.C. § 2255(f). The Court will afford
Petitioner the opportunity to explain why his ...