Ervin v. USA

Filing 2

ORDER AND NOTICE that on or before twenty (20) days from entry of this Order, the Petitioner may file a document in this Court explaining why his §2255 motion should not be summarily dismissed as untimely. Signed by District Judge Martin Reidinger on 9/16/11. (Pro se litigant served by US Mail.)(siw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
Civil Case No. 1:11cv233
[Criminal Case No. 1:08cr128-7]

SEAN ANTHONY ERVIN,

)
)
Petitioner,
)
)
v.
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)
UNITED STATES OF AMERICA,
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Respondent.
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________________________________)

ORDER and NOTICE

THIS MATTER is before the Court on initial review of the Petitioner’s pro
se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. §
2255. [Doc. 1].
Rule 4(b) of the Rules Governing Section 2255 Proceedings directs that
the district court assigned to a § 2255 motion should examine it promptly.
When it plainly appears from any such motion and any attached exhibits that
the petitioner is not entitled to relief, the reviewing court must dismiss the
motion. Rules Governing Section 2255 Proceedings, Rule 4(b). For the
reasons stated herein, it appears that the Petitioner's motion is time-barred.
He shall be given twenty (20) days in which to file a document explaining why
he believes his Motion should not be dismissed as untimely.

I. Factual and Procedural Background
On December 3, 2008, the Petitioner was indicted for conspiracy to
possess with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 846
& 841(a)(1) (Count One), possession with intent to distribute a controlled
substance, crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) (Count Two),
and using, carrying, and possessing a firearm during a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1) (Count Three).

[Case No.

1:08cr128-7, Doc. 2]. On February 13, 2009, the Petitioner entered a guilty
plea in Counts One and Three pursuant to a plea agreement. [Id. at Doc.
114]. Sentencing was held on August 24, 2009, and the Court sentenced the
Petitioner to a total of 152 months imprisonment and five years of supervised
release. [Id. at Doc. No. 301].
On December 23, 2009, the Petitioner sent a letter to the Clerk of Court
for the Fourth Circuit Court of Appeals inquiring about the status of his direct
appeal. [Id. at Doc. 388 at 1]. There being no record of an appeal in the
Petitioner’s criminal case, the Fourth Circuit construed his letter as a notice
of appeal. [Id. at 2]. On September 14, 2010, the Fourth Circuit issued an
Order denying the Petitioner’s motion to extend the filing time for filing a notice
of appeal and dismissing his appeal. [Id. at Doc. 443].

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II. Discussion
In 1996, Congress enacted the Antiterrorism and Effective Death
Penalty Act (the “AEDPA”). Among other things, the AEDPA amended 28
U.S.C. § 2255 by imposing a 1-year statute of limitations period for the filing
of a motion to vacate.

The amendment provides a one year period of

limitation for 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 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.
§2255(f). Judgment was entered by this Court on August 25, 2009. [Case
No. 1:08cr128-7, Doc. 301]. The Petitioner’s conviction and sentence became
final on or about September 9, 2009, when the time for filing a direct appeal
expired. United States v. Johnson, 203 F.3d 823 (4th Cir. 2000); Fed. R. App.
P. 4(b) (providing that, absent certain exceptions, notice of appeal in a
criminal case must be filed within 14 days of the entry of judgment).
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Therefore, the Petitioner had until September 9, 2010 in which to file a motion
pursuant to §2255 in federal court.

The Petitioner filed this motion on

September 13, 2011. It appears that, absent equitable tolling, the Petitioner's
motion is untimely.
The Fourth Circuit has directed district courts to warn pro se petitioners
prior to dismissing their habeas claims as untimely where the government has
not filed a motion to dismiss based on the limitations period. Hill v. Braxton,
277 F.3d 701, 706 (4th Cir. 2002); United States v. Blackstock, 513 F.3d 128,
133 (4th Cir. 2008) (remanding to district court pursuant to Hill for
determination of timeliness of §2255 Motion). The Petitioner will therefore be
given the opportunity to explain why his §2255 motion should not be
dismissed as untimely.
IT IS, THEREFORE, ORDERED that on or before twenty (20) days from
entry of this Order, the Petitioner may file a document in this Court explaining
why his §2255 motion should not be summarily dismissed as untimely.
Signed: September 16, 2011

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