United States District Court, E.D. Virginia, Richmond Division
JAMES R. SPENCER, Senior District Judge.
THIS MATTER is before the Court on a Motion to Dismiss Petitioner's Motion to Vacate, Set Aside, or Correct Sentence ("Motion") filed by Respondent United States of America ("the Government"). ECF No. 71. For the reasons stated below, the Court will GRANT the Government's Motion, ECF No. 71, and DISMISS pro se Petitioner Eddie V. Clay's ("Clay") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") as time-barred, ECF No. 68. Further, the Court will DENY a Certificate of Appealability. Accordingly, the Court will DENY AS MOOT Clay's "Reply Motion." ECF No. 72.
On March 3, 2009, Clay was indicted by a grand jury sitting in the Eastern District of Virginia. ECF No. 1. The Indictment alleged three counts: Possession with the Intent to Distribute a Detectable Amount of Cocaine Base ("count one"), in violation of 21 U.S.C. § 841; Possession of a Firearm in Furtherance of a Drug Trafficking Crime ("count two"), in violation of 21 U.S.C. § 924(c); and, Possession of a Firearm by Felon ("count three"), in violation of 18 U.S.C. § 922(g)(1). Id. Clay made his first appearance on the Indictment on March 17, 2009. On May 5, 2009, the grand jury returned a Superseding Indictment with one additional count: Distribution of Cocaine Base ("count four"), in violation of 21 U.S.C. § 841. ECF No. 18. Clay was arraigned on the Superseding Indictment on May 12, 2009. ECF No. 25. On the same day as the arraignment, the Court heard evidence and argument, ECF No. 26, on Clay's Motion to Suppress, ECF No. 20, and Motion to Disclose the Confidential Informant, ECF No. 21. The Court denied both motions. ECF No. 27.
Clay pled guilty to counts one, three, and four and proceeded to trial on count two. See ECF Nos. 38, 39. On July 23, 2009, Clay was convicted of count two. ECF No. 40. Clay was sentenced on October 19, 2009 to a total term of 36 months' imprisonment on counts one, three, and four, 60 months' imprisonment on count two, to run consecutively, three years supervised release, and a $400 total special assessment. ECF No. 52.
Clay timely appealed his conviction for count two to the United States Court of Appeals for the Fourth Circuit on October 22, 2009. ECF No. 51. The Fourth Circuit affirmed the decision of this Court. ECF No. 66. On January 5, 2011, Clay filed a petition for writ of certiorari with the United States Supreme Court. The petition for writ of certiorari was denied on February 22, 2011.
On March 13, 2012, Clay filed his § 2255 Motion, in which he alleges three grounds for relief:
Ground One: Petitioner is not a felon in violation of 18 U.S.C. § 922(g)(1)
Ground Two: "Ineffective assistance of counsel when the defendant was sentenced under the 2k2.1(b)(6) for possession of a firearm and a 924(c) which is prohibited"
Ground Three: "Ineffective assistance of counsel when the counsel failed to object to the Sixth Amendment violation of which was included in the defendant's sentence calculation in violation of Gideon v. Wainwright "
ECF No. 68; see ECF No. 69. On March 20, 2012, the Government filed the instant Motion, arguing that Clay's § 2255 Motion is time barred. ECF No. 71. Clay replied, ECF No. 72, and the matter is now ripe for decision.
II. LEGAL STANDARD
Under 28 U.S.C. § 2255 ("§ 2255"), a prisoner in federal custody may attack his sentence on four grounds: (1) the sentence violates the Constitution or the laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. § 2255; see also Hill v. United States, 368 U.S. 424, 426-27 (1962). A claim which does not challenge the constitutionality of a sentence or the court's jurisdiction is cognizable in a § 2255 motion only if the alleged violation constitutes a "miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979). To prevail under § 2255, the movant bears the burden of proof by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958); United States v. King, 36 F.Supp.2d 705, 707 (E.D. Va. 1999). A pro se petitioner is held to a less exacting standard than an attorney in drafting his petition. Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978). Therefore, the Court should generously interpret Dyson's factual allegations and legal contentions.
Petitions for collateral relief pursuant to § 2255 are subject to a one-year statute of limitations. § 2255(f). Specifically, a petition under § 2255 must be filed within one year after the latest date on which (1) the judgment against the defendant became final; (2) any impediment to making the motion that was created by the government and violates the Constitution or laws of the United States was removed; (3) the Supreme Court first recognized the right the defendant claims, provided that the right applies retroactively to cases on collateral review; or (4) on which the facts supporting the defendant's claim could have been discovered by exercising due diligence. Id. A conviction becomes final when one of three events occur: (1) the opportunity to appeal the district court's judgment expires; (2) the defendant's opportunity to file a petition for a writ of certiorari from the appellate court expires; or (3) the United States Supreme Court denies the inmate's petition for a writ of certiorari. See Clay v. United States, 537 U.S. 522, 524-25, 532 (2003); United States v. Torres, 211 F.3d 836, 839 (4th Cir. 2000) ("[F]or a defendant who files a petition for certiorari with the ...