United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM AND RECOMMENDATION
B. JONES, JR. UNITED STATES MAGISTRATE JUDGE.
matter comes before the court on the government's motion
to dismiss [DE-160] Petitioner Kristopher Owen Daniels's
amended motion under 28 U.S.C. § 2255 to vacate,
setaside, or correct his sentence [DE-149, -152, -155].
Petitioner responded to the government's motion.
[DE-163]. These motions are referred to the undersigned for a
memorandum and recommendation to the district court.
See 28 U.S.C. § 636(b)(1)(B); Fed. R. Crim.P.
59(b)(1). For the reasons stated below, it is recommended
that the government's motion to dismiss be allowed and
Petitioner's § 2255 motion be denied.
September 13, 2016, Petitioner was found guilty by a jury
verdict as to counts one, two, three, and four of a
four-count superseding indictment. [DE-65, -110]. Count one
charged possession with intent to distribute a quantity of
cocaine base and a quantity of marijuana in violation of 21
U.S.C. § 841(a)(1). [DE-65] at 1. Count two charged
using and carrying a firearm during and in relation to a drug
trafficking crime and possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A). Id. at 1-2. Counts three and four
charged possession of a firearm by a felon in violation of 18
U.S.C. §§ 922(g) and 924. Id. at 2.
December 6, 2016, Petitioner appeared before the district
court, represented by counsel, for sentencing. [DE-119,
-139]. The court sentenced Petitioner to a term of
imprisonment of 92 months on each of counts one, three, and
four, to be served concurrently, and a term of 60 months on
count two, to be served consecutively, producing a total term
of 152 months. [DE-130]. Petitioner filed a notice of appeal
on December 6, 2016. [DE-121]. On October 3, 2017, the Fourth
Circuit Court of Appeals affirmed the criminal judgment.
January 29, 2019, Petitioner filed pro se a motion
to vacate, set aside, or correct his sentence pursuant to
§ 2255. [DE-149]. The motion did not substantially
follow the form appended to the Rule Governing § 2255
Proceedings, so the clerk directed Petitioner to correct his
motion. [DE-151]. On February 21, 2019, Petitioner filed a
corrected motions [DE-152]. In Ground One, Petitioner alleged
ineffective assistance of counsel for failing to object to
count two of the indictment as impermissibly duplicitous,
failing to object to the court's jury instruction
regarding count two, and failing to request a unanimity
instruction as to count two to cure its duplicity.
Id. at 4. In Ground Two, Petitioner alleged
ineffective assistance of counsel for failing to present
insanity as a defense. Id. at 5. On March 18, 2019,
Petitioner filed a document which the court labelled as an
amended motion, but which appears to be a memorandum in
support of his original motion, as it raises the same grounds
but offers legal argument. [DE-15 5]. On May 24, 2019, the
government filed its motion to dismiss for failure to state a
claim upon which relief can be granted [DE-160], to which
Petitioner filed a response on June 13, 2018 [DE-163].
28 U.S.C. § 2255
conviction and exhaustion, or waiver, of any right to appeal,
courts and the public can presume that a defendant stands
fairly and finally convicted. See United States v.
Frady, 456 U.S. 152, 164-65 (1982). However, 28 U.S.C.
§ 2255 provides a means for a defendant convicted of a
federal offense to collaterally attack a conviction or
sentence on four grounds: (1) the sentence was imposed in
violation of the Constitution or the laws of the United
States; (2) the court was without jurisdiction to impose the
sentence; (3) the sentence was in excess of the maximum
authorized by law; or (4) the sentence is otherwise subject
to collateral attack. 28 U.S.C. § 2255(a). "[T]hus
§ 2255 relief is not limited to constitutional error in
a conviction or sentence." United States v.
Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999). However,
where a petitioner seeks relief from a nonconstitutional
error, "the scope of review ... is more limited than
that of constitutional error; a nonconstitutional error does
not provide a basis for collateral attack unless it involves
a fundamental defect which inherently results in a complete
miscarriage of justice, or is inconsistent with the
rudimentary demands of fair procedure." Id.
"In a § 2255 proceeding, the burden of proof is on
petitioner to establish his claim by a preponderance of the
evidence." Toribio-Ascencio v.
United States, Nos. 7:05-CR-97-FL, 7:08-CV-211-FL, 2010
WL 4484447, at *l (E.D. N.C. Oct. 25, 2010) (citing
Miller v. United States, 261 F.2d 546, 547 (4th Cir.
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the legal sufficiency of the complaint, not to resolve
conflicts of fact or to decide the merits of the action.
Edwards v. City of Goldsboro, 178 F.3d 231, 243-44
(4th Cir. 1999). However, the '"[f]actual
allegations must be enough to raise a right to relief above
the speculative level' and have 'enough facts to
state a claim to relief that is plausible on its
face.'" Wahi v. Charleston Area Med. Ctr.,
Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)); see also Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) ("While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations."). "[A] plaintiffs obligation to
provide the 'grounds' of his 'entitle[ment] to
relief requires more than labels and conclusions, and a
formulaic recitation of a cause of action's elements will
not do." Twombly, 550 U.S. at 555 (citations
omitted). In considering a motion to dismiss, the court
assumes the truth of all facts alleged in the complaint and
the existence of any fact that can be proved, consistent with
the complaint's allegations. Erickson v. Pardus,
551 U.S. 89, 94 (2007). "The issue is not whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims."
Revene v. Charles Cty. Comm'rs, 882 F.2d 870,
872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416
U.S. 232, 236 (1974)). Moreover, a court "need not
accept the legal conclusions drawn from the facts" nor
"accept as true unwarranted inferences, unreasonable
conclusions, or "arguments." Eastern Shore
Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d
175, 180 (4th Cir. 2000).
Government contends that the petition was not timely filed
because it was received by the court on January 29, 2019,
which is more than one year and ninety days from the date the
Court of Appeals judgment was entered. Gov't's Resp.
[DE-161] at 2. Petitioner responds that his limitations
period expired one year and ninety days from the date the
Court of Appeals mandate was issued. Pet'r's ...