Noel v. USA

Filing 9

ORDER Petitioner shall have 20 days from entry of this Order to explain to the Court why 1 Motion to Vacate/Set Aside/Correct Sentence (2255), should not be dismissed as untimely; and Petitioner shall also have 20 days from entry of this Order to return a copy of the Section 2255 motion to vacate, signed in his own handwriting under penalty of perjury. ( Petitioner's Response & Specific Document due by 2/2/2017 plus an additional 3 days if served by mail. ) Signed by District Judge Richard Voorhees on 1/13/17. (Pro se litigant served by US Mail.) (ejb)

DISTRICT COURT OF THE UNITED STATES
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16-cv-406-RLV
(1:09-cr-57-RLV-1)

BRYAN KEITH NOEL,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent. )
____________________________________ )

ORDER

THIS MATTER is before the Court on Petitioner’s Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. No. 1).
I.

INITIAL SCREENING

The Court has conducted an initial screening of the petition under Rule 4(b) and finds that
it appears that the motion is untimely. 28 U.S.C. § 2255(f). Furthermore, Petitioner has not signed
the petition under penalty of perjury.
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 one-year
statute of limitations period for the filing of a motion to vacate. Such amendment provides:
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
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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).
On March 4, 2010, a jury found Petitioner guilty of bank fraud and other crimes arising out
of Petitioner’s participation in a fraudulent investment scheme. (Criminal Case No. 1:09-cr-57RLV-1, Doc. No. 96: Jury Verdict). Judgment was entered on March 1, 2011. (Id., Doc. No. 116:
Judgment). Petitioner appealed, and on December 28, 2012, the Fourth Circuit Court of Appeals
affirmed the conviction and sentence. United States v. Noel, 502 Fed. App’x 284 (4th Cir. 2012).
Petitioner filed a petition for writ of certiorari, which the Supreme Court denied on October 7,
2013. Noel v. United States, 134 S. Ct. 366 (2013). Petitioner’s conviction therefore became final
for purposes of Section 2255(f) on October 7, 2013. See United States v. Thomas, 203 F.3d 350
(5th Cir. 2000). Petitioner did not file his Section 2255 motion to vacate, however, until December
21, 2016. It appears, therefore, that Petitioner’s motion to vacate is untimely.
The Court will grant Petitioner 20 days in which to provide an explanation as to why the
instant Section 2255 petition should not be dismissed as untimely, including any reasons why
equitable tolling should apply. See 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).
IT IS, THEREFORE, ORDERED that:
1. Petitioner shall have 20 days from entry of this Order in which to explain to the Court
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why the Section 2255 Motion to Vacate should not be dismissed as untimely. If
Petitioner does not file such explanation within 20 days from entry of this Order, the
petition may be dismissed without further notice.
2. Petitioner shall also have 20 days from entry of this Order in which to return a copy of
the Section 2255 motion to vacate, signed in his own handwriting under penalty of
perjury. If Petitioner does not submit such signed motion to vacate within 20 days from
entry of this Order, the petition may be dismissed without further notice.
3. The Clerk of Court is instructed to mail to Petitioner a form used in this district for
Section 2255 petitions so that Petitioner may re-file his petition on such form if he so
wishes.

Signed: January 13, 2017

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