United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
S. DAVIS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on a Motion to Vacate, Set Aside,
or Correct Sentence pursuant to 28 U.S.C. § 2255, filed
by Keith Jermaine Everett ("Petitioner")- ECF No.
41. Petitioner's § 2255 motion alleges that
Petitioner's guilty plea was involuntary and argues that
his sentence should be reduced. Id. For the reasons
set forth below, Petitioner's § 2255 motion is
DISMISSED as untimely.
FACTUAL AND PROCEDURAL BACKGROUND
29, 2013, pursuant to a written plea agreement, Petitioner
pled guilty to a one-count criminal information charging him
with conspiracy to distribute and possess with intent to
distribute five-hundred (500) grams or more of cocaine. ECF
No. 19. On August 27, 2013, Petitioner was
sentenced to 188 months imprisonment followed by five years
of supervised release. ECF No. 30. Petitioner did not file an
appeal to the Fourth Circuit Court of Appeals.
9, 2017, the Court received Petitioner's motion titled
"Motion 994-A." ECF No. 36. Approximately one week
later, the Court received a second motion titled "Motion
3582-c-2 Two Level Reduction." ECF No. 37. On June 28,
2017, this Court issued an Order instructing Petitioner to
Show Cause why his first motion, which attacked his sentence
based on the alleged involuntariness of his plea, should not
be construed as a motion under 28 U.S.C. § 2255. ECF No.
38, at 5. To the extent Petitioner requested
reclassification, the Court also advised Petitioner that a
§ 2255 motion may be timebarred. Id. On July
26, 2017, Petitioner filed the instant § 2255 motion,
thereby indicating his request for reclassification. ECF No.
41. The Government was ordered to file a response, and on
September 20, 2017, the Government filed a brief asserting
that Petitioner's § 2255 motion should be dismissed
as untimely. ECF No. 48. Petitioner's § 2255 motion
is now ripe for review.
STANDARD OF REVIEW
federal prisoner, in custody, may collaterally attack his
sentence or conviction by moving the district court "to
vacate, set aside or correct the sentence." 28 U.S.C.
§ 2255(a). To obtain such relief, a petitioner must
prove by a preponderance of the evidence that his sentence or
conviction was "imposed in violation of the Constitution
or laws of the United States, " that the district court
"was without jurisdiction to impose such sentence,
" that the sentence exceeds "the maximum authorized
by law, " or that the sentence or conviction is
"otherwise subject to collateral attack."
Id.; see Miller v. United States, 261 F.2d
546, 547 (4th Cir. 1958).
§ 2255 motion is, in essence, a statutory federal habeas
corpus action that enables a petitioner to collaterally
attack his sentence or conviction through the filing of a new
proceeding, as contrasted with a direct appeal. United States
v. Hadden, 475 F.3d 652, 663 (4th Cir. 2007). With
limited exceptions, a petitioner advancing new claims
asserted for the first time in a § 2255 motion
"must clear a significantly higher hurdle than would
exist on direct appeal." United States v.
Frady, 456 U.S. 152, 166 (1982) . The "higher
hurdle" applies because, once a Petitioner's
opportunity to pursue a direct appeal has been waived or
exhausted, there is "a final judgment [that] commands
respect." Id. at 164-65.
and the President have established a one-year limitations
period within which a petitioner must file a § 2255
motion. 28 U.S.C. § 2255(f). The one-year limitations
period begins running on the latest of four dates: (1) the
"date on which the judgment of conviction becomes
final"; (2) the date on which certain
government-created impediments to filing are removed; (3) the
date on which a new right has been recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; or (4) the date on which facts supporting
the claim could be discovered through due diligence.
Id. (emphasis added).
Petitioner's § 2255 motion, nor his various other
briefs filed in this case, cite to any case law, statute, or
any other authority that would excuse his compliance with the
limitations period set forth in § 2255(f). As
highlighted by the Government, Petitioner had one year to
file a timely § 2255 motion from the latest of the four
dates set forth in § 2255(f). Because Petitioner fails
to assert that a Government-created impediment prevented him
from filing a timely § 2255 motion, and his theories of
relief do not rely on new facts that were not previously
discoverable or newly decided Supreme Court cases that were
made retroactive, the one-year limitation period began to run
on "the date on which the judgment of conviction bec [a]
me  final." 28 U.S.C. § 2255(f)(1).
criminal judgment was entered on the public docket on August
30, 2013, and his conviction became final fourteen days later
when Petitioner's direct appeal period expired. See
United States v. Osborne, 452 Fed.Appx. 294, 295 (4th
Cir. 2011) (explaining that a conviction becomes
"final" for § 2255(f)(1) purposes at the
"expiration of the time for seeking [a direct
appeal]" and that the appeal period in a criminal case
extends "fourteen days from the date when judgment was
'entered on the criminal docket'") (citations
omitted). Petitioner's one-year limitations period
therefore expired in September of 2014, yet he did not file
his motion until May of 2017, nearly three years after the
limitations period expired. Having offered no valid
justification excusing his late-filing, Petitioner's
§ 2255 motion is DISMISSED as untimely.
reasons stated above, Petitioner's § 2255 motion is
DISMISSED as untimely. ECF No. 41. Finding
that the procedural basis for dismissal of Petitioner's
§ 2255 motion is not debatable, and alternatively
finding that Petitioner has failed to make a
"substantial showing of the denial of a constitutional
right, " a certificate of appealability is
DENIED. 28 U.S.C. § 2253(c)(2);
see R. Gov. § 2255 Proc. for U.S. Dist. ...