United States District Court, D. South Carolina, Florence Division
R. BRYAN HARWELL, District Judge.
This matter comes before the Court upon the pro se motion of the petitioner, Ryan Craig Brown, pursuant to 28 U.S.C. § 2255, filed on November 6, 2013 [ECF No. 61]. Petitioner alleges "breach of plea agreement", "violation of due process rights", "ineffective assistance of counsel", and "sentencing court error". Further, Petitioner has filed two motions to amend (ECF No. 85 and 104), a motion for appointment of counsel (ECF No. 87), and a motion to proceed IFP (ECF No. 62). Defendant has filed  Motion to Dismiss. The Court finds that the petition was not timely filed and must be dismissed.
I. Procedural Background
The petitioner entered a plea of guilty to Count One (armed bank robbery); Count Two (use of a firearm during a crime of violence); and Count Three (robbery affecting commerce) on October 2, 2008. He was sentenced by this Court to 300 months of imprisonment followed by five years of supervised release. Judgment was entered on January 27, 2009. An appeal was filed, and the Fourth Circuit Court of Appeals issued an opinion affirming this court on September 3, 2009 and entered judgment on the same date. The mandate was issued on September 25, 2009. Petitioner did not file a petition for writ of certiorari.
II. Applicable Law
Prisoners in federal custody may attack the validity of their sentences pursuant to 28 U.S.C. § 2255. In order to move the court to vacate, set aside, or correct a sentence under § 2255, a petitioner must prove that one of the following occurred: (1) a sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). In deciding a § 2255 motion, the court may summarily dismiss the motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rules Governing Section 2255 Proceedings 4(b); see 28 U.S.C. § 2255(b) (a hearing is not required on a § 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief). An evidentiary hearing "is required when a movant presents a colorable  claim showing disputed material facts and a credibility determination is necessary to resolve the issue." United States v. Coon, 205 Fed.Appx. 972, 973 (4th Cir. 2006) (citing United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000)). However, a hearing is not required unless the claim shows "disputed facts involving inconsistencies beyond the record." United States v. Robinson, 238 Fed.Appx. 954, 955 (4th Cir. 2007).
After studying the petitioner's submissions, the court has determined that an evidentiary hearing is not necessary and that the § 2255 petition should be denied because the petition was not timely filed.
The timeliness of Petitioner's Motion to Vacate is governed by 28 U.S.C. § 2255(f). The section provides the following:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(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 ...