Filed: May 19, 2015
Latest Update: May 19, 2015
Summary: MEMORANDUM OPINION NORMAN K. MOON , District Judge . Maurice Renaldo Lewis, proceeding pro se, filed this motion to vacate, set aside or correct the sentence under 28 U.S.C. 2255. Lewis is challenging the validity of his confinement pursuant to the judgment of this court entered July 2, 2009, whereby he was convicted of conspiracy to distribute crack cocaine. Upon consideration of the 2255 motion and the record, I conclude that the action must be summarily dismissed as untimely filed.
Summary: MEMORANDUM OPINION NORMAN K. MOON , District Judge . Maurice Renaldo Lewis, proceeding pro se, filed this motion to vacate, set aside or correct the sentence under 28 U.S.C. 2255. Lewis is challenging the validity of his confinement pursuant to the judgment of this court entered July 2, 2009, whereby he was convicted of conspiracy to distribute crack cocaine. Upon consideration of the 2255 motion and the record, I conclude that the action must be summarily dismissed as untimely filed. ..
More
MEMORANDUM OPINION
NORMAN K. MOON, District Judge.
Maurice Renaldo Lewis, proceeding pro se, filed this motion to vacate, set aside or correct the sentence under 28 U.S.C. § 2255. Lewis is challenging the validity of his confinement pursuant to the judgment of this court entered July 2, 2009, whereby he was convicted of conspiracy to distribute crack cocaine. Upon consideration of the § 2255 motion and the record, I conclude that the action must be summarily dismissed as untimely filed.1
I.
Lewis pleaded guilty, pursuant to a written plea agreement, to one count of possession with intent to distribute crack cocaine, in exchange for dismissal of other counts. Based in part on Lewis's criminal record, the court sentenced him to 220 months in prison. Lewis filed an appeal, but later filed a motion to dismiss, which was granted on October 22, 2009.
Lewis signed and dated this § 2255 motion on November 13, 2014, and the court received it on November 18. In his motion, Lewis alleges that counsel was ineffective at sentencing for failing to challenge his designation as a career offender, which caused him to be wrongfully sentenced to a longer prison term.2 Lewis also asserts that he should be resentenced in light of two recent decisions of the United States Supreme Court: Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (June 17, 2013), and Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (June 20, 2013).
The court filed the § 2255 motion conditionally, notified Lewis that it appeared to be untimely under § 2255(f), and granted him an opportunity to submit any additional evidence and/or argument on the issue of timeliness. The court specifically advised the defendant that failure to provide such information would result in dismissal of the action as untimely. Lewis has responded, making the matter ripe for consideration.
II.
A person convicted of a federal offense has one year to file a § 2255 motion, starting from the latest of the following dates:
(1) the date on which the judgment of conviction becomes final;
(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 governmental action;
(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). If the district court gives the defendant notice and an opportunity to provide any argument or evidence regarding timeliness, and the defendant fails to make the requisite showing, the district court may summarily dismiss the motion. Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002).
Lewis's § 2255 motion is clearly untimely under § 2255(f)(1). As stated, judgment was entered against Lewis on July 2, 2009. His conviction became final on October 22, 2009, when the United States Court of Appeals for the Fourth Circuit dismissed his appeal. He then had one year-until October 22, 2010-in which to file a timely § 2255 motion. As he filed his § 2255 motion on November 13, 2014,3 his motion is untimely under § 2255(f)(1). Lewis states no facts triggering calculation of his time limit under § 2255(f)(2), based on governmental impediment, or § 2255(f)(4), based on newly discovered facts.
Lewis argues that his claims should be deemed timely under § 2255(f)(3). Under this section, when a United States Supreme Court decision recognizes a new constitutional right, defendants have one year from the date of the decision to assert a claim for relief under that new right if it applies retroactively to cases on collateral review. See Dodd v. United States, 545 U.S. 353, 358 (2005) (holding that one-year filing period in § 2255(f)(3) runs from the date on which the right asserted was initially recognized by Supreme Court even if right has not yet been made retroactively applicable to cases on collateral review). Lewis failed to meet the one-year requirement. Both the Alleyne decision and the Descamps decision were issued in June 2013.4 Lewis did not file his § 2255 motion until more than a year later, in November 2014. Therefore, his motion cannot be deemed timely under § 2255(f)(3).5
Finally, Lewis fails to state any facts warranting equitable tolling of the federal filing deadline. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (finding that equitable tolling requires showing of due diligence and "some extraordinary circumstance" that prevented timely filing). Accordingly, I conclude that Lewis's § 2255 motion must be summarily dismissed as untimely filed.
The Clerk is directed to send copies of this memorandum opinion and accompanying order to the defendant.
