MARTIN REIDINGER, District Judge.
This matter is before the Court on initial screening of Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, or alternatively for relief under 28 U.S.C. § 2241 and the writ of error coram nobis. [Doc. 1]. Petitioner seeks relief from his sentence on the basis of the Fourth Circuit's en banc decision in
On September 13, 2004, Petitioner pled guilty pursuant to a written plea agreement to possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). [Case No. 1:04cr64, Doc. 32: Plea Agreement; Doc. 44: Judgment]. In the written plea agreement, Petitioner agreed to waive the right to contest his conviction or sentence in a post-conviction proceeding with the exception of (1) claims of ineffective assistance, (2) claims of prosecutorial misconduct, or (3) as to the sentence, a claim that one or more findings on the guidelines issues were inconsistent with the explicit stipulations in the plea agreement, or based on an unanticipated issue arising during the sentencing hearing and which the sentencing judge found and certified to be of such an unusual nature as to require review by the Fourth Circuit. [
Petitioner was designated as a career offender under U.S.S.G. § 4B1.1.
Petitioner filed his petition in this Court on July 24, 2012. He seeks relief from the sentence contending that after
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings . . ." in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the motion to vacate can be resolved without a response from the Government and without an evidentiary hearing based on the record and governing case law.
Paragraph 6 of 28 U.S.C. § 2255, which applies to initial motions to vacate, provides generally for a one-year statute of limitations from the date on which a petitioner's judgment becomes final. 28 U.S.C. § 2255(f)(1). Here, Petitioner's judgment became final when his right to file a petition for certiorari expired on or about February 12, 2006, or 90 days after the entry of the Fourth Circuit's mandate (November 14, 2005).
Furthermore, even if this Court were to apply equitable tolling, Petitioner would still not be entitled to
Petitioner asserts 28 U.S.C. § 2241 and the writ of error coram nobis as alternative grounds for relief from Petitioner's sentence. Petitioner is not entitled to a reduction in his sentence under either of these alternative forms of relief. First, no prisoner may seek relief from his conviction or sentence under 28 U.S.C. § 2241 unless his remedy under Section 2255 "is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). "It is beyond question that § 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision."
In other words, Section 2255 can only be found "inadequate or ineffective" in limited circumstances where the prisoner is challenging the legality of his conviction. Here, Petitioner does not challenge the legality of his conviction; rather, he challenges his sentence, which he contends was based on prior state court convictions that were incorrectly used to enhance his sentence. Therefore, Petitioner has failed to demonstrate that pursuit of relief through § 2255 is inadequate, and his claim pursuant to Section 2241 must be dismissed.
Petitioner also seeks relief under the writ of error coram nobis. Coram nobis relief is only available when all other grounds for relief are inadequate and where the defendant is no longer in custody.
Finally, in addition to the fact that the § 2555 petition is time-barred, Petitioner's
Here, Petitioner does not allege in his motion that his plea was either unknowing or involuntary, and the Rule 11 colloquy establishes that he pled guilty understanding the charge to which he was pleading guilty as well as the consequences of his plea, including his waiver of his right to challenge his sentence in a post-conviction proceeding. His petition does not present either a claim of ineffective assistance of counsel or prosecutorial misconduct, or a claim challenging his sentence based on the limited grounds allowed in the waiver. Accordingly, none of the exceptions to Petitioner's waiver applies, and his motion to vacate would be subject to dismissal even if it were not time-barred. Additionally, Petitioner's alternative grounds for relief are subject to dismissal for the same reason.
For the foregoing reasons, the Court dismisses Petitioner's § 2255 petition as untimely.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, the Court declines to issue a certificate of appealability as Petitioner has not made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2);