United States District Court, D. South Carolina
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge
Movant Courtney Harris (“Movant”), proceeding pro se, seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
I. PROCEDURAL BACKGROUND
On August 28, 2002, a grand jury in the District of South Carolina returned a six-count superseding indictment against Movant and a co-defendant. Movant was charged with conspiracy to possess with intent to distribute cocaine and five grams or more of cocaine base (Count 1); distributing five grams or more of cocaine base (Counts 2 and 3); knowingly using and carrying firearms during and in relation to, and in furtherance of, a drug trafficking crime (Count 4); and being a felon in possession of a firearm (Count 5). ECF No. 36. On October 31, 2002, Movant entered a plea of guilty to Counts 1 and 4 of the superseding indictment. ECF Nos. 58-59. On March 10, 2003, Movant was sentenced to 64 months imprisonment as to Count 1 and 60 months imprisonment as to Count 4. ECF No. 72. The terms were to be served consecutively. ECF No. 72. Judgment was entered on March 20, 2003. ECF No. 75. An amended judgment was entered on July 22, 2008, based upon the retroactive application of changes to the United States Sentencing Guidelines. The amended judgment reduced Movant’s sentence to imprisonment for 51 months as to Count 1 and 60 months, consecutive, as to Count 4. ECF No. 110. Another amended judgment was entered on November 8, 2011, based upon the retroactive application of changes to the United States Sentencing Guidelines. The amended judgment reduced Movant’s sentence to 37 months imprisonment as to Count 1, and 60 months, consecutive, as to Count 4. ECF No. 127.
Subsequently, Movant filed a motion to appoint counsel seeking relief pursuant to United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). ECF No. 128. This court denied Movant’s motion because the Court of Appeals for the Fourth Circuit determined that Simmons is not retroactively applicable to cases on collateral review in United States v. Powell, 691 F.3d 554 (4th Cir. 2012). ECF No. 129.
Movant filed this § 2255 motion on December 20, 2012. ECF No. 131. On January 22, 2013, the Government filed a motion for summary judgment. ECF No. 135. That same day, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court issued an order advising Movant of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. ECF No. 136. On February 25, 2013, Movant filed two responses. ECF Nos. 138-139. Movant has also filed two subsequent responses to the Government’s motion for summary judgment. ECF Nos. 140-141.
Movant asserts that United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), and Bond v. United States, 131 S.Ct. 2355 (2011), constitute newly discovered evidence that would permit him to file this motion. Movant alleges that this court was without jurisdiction to sentence him. ECF No. 131 at 5, 7. Movant also asserts that he is “legally and factually innocent of any and all federal crimes. . . as applied to him.” ECF No. 131 at 8. The Government contends that Movant’s § 2255 motion is time-barred. ECF No. 134. The court agrees.
A defendant has one year from the latest of (1) the date on which a judgment of conviction becomes final; (2) the date on which an impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the defendant was prevented from making a motion by such governmental action; (3) the date on which a 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 could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f).
A judgment of conviction becomes final when the time for seeking review expires. Clay v. United States, 537 U.S. 522, 525 (2003). Here, this court issued its judgment in this case on March 20, 2003. ECF No. 75. Following the entry of judgment, Movant had 14 days to file an appeal with the United States Court of Appeals for the Fourth Circuit. Fed. R. App. P. 4(b)(1). The statute of limitations began to run when the time expired for filing an appeal with the Fourth Circuit contesting Movant’s convictions and sentence. Movant did not file an appeal. As a result, the judgment in this case became final in April of 2003. Movant’s December 20, 2012, filing was not within one year of the date on which his judgment of conviction became final. Therefore, his motion to vacate is not timely under § 2255(f)(1).
Movant is unable to demonstrate that one of the other dates listed under § 2255(f) occurred within one year of his December 20, 2012 filing. Movant does not assert that he was prevented from filing a § 2255 motion due to governmental interference. See 28 U.S.C. § 2255(f)(2). There is also no evidence to suggest that governmental interference prevented the filing of Movant’s § 2255 motion. Therefore, Movant’s motion to vacate is not timely under § 2255 (f)(2).
Additionally, Movant cannot demonstrate that there is a Supreme Court decision recognizing a new right that renders his motion timely. See 28 U.S.C. § 2255(f)(2), (3). Movant has referred to United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), and Bond v. United States, 131 S.Ct. 2355 (2011), as “newly discovered evidence” in an attempt to demonstrate that the Supreme Court has recognized a new right retroactively applicable to cases on collateral review. However, Movant’s reliance on Bond and Simmons is mistaken.
Simmons was an application of Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). The Fourth Circuit held that the United States Supreme Court’s decision in Carachuri–Rosendo does not apply retroactively to cases on collateral review. United States v. Powell, 691 F.3d 554 (4th Cir. 2012). Subsequently, the Fourth Circuit recognized that in certain cases, Simmons may be retroactively applicable on collateral review. See Miller v. United States, 735 F.3d 141, 146-47 (4th Cir. 2013). However, in Miller, unlike in Powell, the Government waived the statute of limitations, “which would normally bar Miller’s motion as untimely.” Id. at 143. Here, the Government has made no such waiver and explicitly invokes the statute of limitations. ECF No. 134 at 3. Thus, as in Powell, the retroactivity of Simmons is irrelevant because Movant’s § 2255 petition can “be sustained only by a retroactive Supreme Court decision.” Miller, 735 F.3d at 147. Because the Government has not waived its statute of limitations defense and because Simmons is not a United States Supreme Court case, the statute of limitations under § 2255(f)(3) runs from June 14, 2010-the date of the Supreme Court’s decision in Carachuri-Rosendo. See, e.g., Anderson v. United States, 5:05-cr-70–BO, 2013 WL 6504764 (E.D. N.C. Dec. 11, 2013). Therefore, Movant’s reliance on Simmons cannot render this motion to vacate timely.
Movant also relies Bond v. United States, 131 S.Ct. 2355 (2011), in an attempt to bring his motion to vacate within the statute of limitations. As a threshold matter, even if Bond were applicable here, Movant’s motion would still be untimely. Bond was decided on June 16, 2011. Pursuant to § 2255(f)(3), if Bond recognized a new right that is retroactively applicable to cases on collateral review, Movant had one year from the initial recognition of that new right to file his § 2255 petition. Movant did not file his motion until December 20, 2012, which was ...