RICHARD D. BENNETT, District Judge.
Pending are Petitioner's Motions to Vacate (ECF 42) and for Relief of Restitution (ECF 45 and 47). Respondent has filed an Answer seeking dismissal of Petitioner's Motion to Vacate because it is both time-barred and asserts a claim which was waived by Petitioner in his plea agreement. ECF 50. Petitioner was granted 28 days to respond to the assertion his Motion to Vacate was time-barred, but has not filed anything further in this case. ECF 51. For the reasons stated below, Petitioner's pending motions shall be denied.
On November 2, 2012, Petitioner Moses Sumo Appram ("Appram") entered a guilty plea to charges of unauthorized use of access devices as defined by 18 U.S.C. §§1029(a)(5) and (2) and aggravated identity theft as defined by 18 U.S.C. §1028(A)(1). ECF 26. Appram pled guilty pursuant to a plea agreement and was sentenced to serve 90
ECF 34 at ¶15.
In addition to payment of restitution, Appram's plea agreement included the following provision regarding an appeal and collateral review:
ECF 34 at ¶17(b).
Appram asserts in his Motion to Vacate and Motions for Relief from Restitution that he will never be able to pay the amount of restitution ordered given his criminal background which will make his ability to obtain a job after his release difficult. ECF 42, 45, and 47. He asserts the imposition of the restitution amount unfairly burdens him with an insurmountable debt and seeks an Order from this Court relieving him of his obligation to pay it. Id.
Appram's conviction became final on March 5, 2012, fourteen days following the date of his conviction, February 20, 2012. See Fed. Rule App. Proc. 4(b)(1)(A) (criminal defendant's notice of appeal must be filed within 14 days of the date of judgment). Under the provisions of 28 U.S.C. §2255, the limitation period runs from the latest of:
28 U.S.C. § 2255.
"[T]he one year limitation period is also subject to equitable tolling in `those rare instances where B due to circumstances external to the party's own conduct B 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. 2004). To be entitled to equitable tolling, Petitioner in the instant case must establish that either some wrongful conduct by Respondents contributed to his delay in filing his petition or that circumstances that were beyond his control caused the delay. See Harris, 209 F. 3d at 330. "[A]ny resort to equity must be reserved for those rare instances where . . . it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Id. The Fourth Circuit has made it clear that, prior to dismissing a pro se petition for writ of habeas corpus, "a district court should furnish notice that simply warns the pro se petitioner that his . . . action will be dismissed as untimely unless the petitioner can demonstrate that the petition was filed within the proper time period." Hill, 277 F. 3d at 708.
Appram has offered no basis for his entitlement to equitable tolling, nor has he addressed Respondent's assertion that he waived his right to review of the order for restitution under the plea agreement. Appram does not claim in any of his motions that the plea agreement was involuntary. Because he waived his right to direct appeal, the claim regarding the propriety of the amount of restitution ordered is now procedurally defaulted and cannot be raised. See United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (issues not raised at sentencing or on direct appeal are defaulted and generally cannot be raised in subsequent collateral proceedings). Thus, in addition to being time-barred, the claim asserted is not properly brought before this Court.
When a district court dismisses a habeas petition solely on procedural grounds, a Certificate of Appealability will not issue unless the petitioner can demonstrate both "(1) `that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right' and (2) `that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.'" Rouse v. Lee, 252 F.3d 676, 684 (4th Cir.2001) (quoting Slack v. Daniel, 529 U.S. 473, 484 (2000)). Appram fails to satisfy the standard for a Certificate of Appealability and it shall not issue.
A separate Order follows.