Black v. USA

Filing 2

ORDER that Petitioner shall have 30 days from the entry of this order to file written response explaining why her ineffective assistance of counsel claim should not be dismissed as untimely, re: 1 Motion to Vacate/Set Aside/Correct Sentence (2255). Signed by District Judge Martin Reidinger on 09/25/2018. (Pro se litigant served by US Mail.) (ni)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:18-cv-00165-MR
[CRIMINAL CASE NO. 1:14-cr-00026-MR-DLH-2]

TABATHA DIANNE BLACK,

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

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. 1].
This matter is before the Court on an initial screening of the petition
under Rule 4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts. For the following reasons, the Court finds that
the motion to vacate appears to be untimely as to Petitioner’s ineffective
assistance of counsel claim. 28 U.S.C. § 2255(f).
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 one-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 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.
28 U.S.C. § 2255(f).
Petitioner pled guilty to the offense of sexual exploitation of a minor, in
violation of 18 U.S.C. § 2251(a), on May 21, 2014. [Criminal Case No. 1:14cr-26-MR-DLH-2, Doc. 56: Judgment]. On February 12, 2015, this Court
sentenced Petitioner to 210 months’ imprisonment. Judgment was entered
on February 19, 2015, and Petitioner did not appeal. [Id.]. Petitioner’s
conviction, therefore, became final fourteen days later for purposes of
Section 2255(f) when the time for filing a notice of appeal expired. See
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United States v. Clay, 537 U.S. 522, 524-25 (2003) (when a defendant does
not appeal, his conviction becomes final when the opportunity to appeal
expires); Fed. R. App. P. 4(b)(1)(A).
Petitioner placed her Section 2255 motion to vacate in the prison
system for filing on May 30, 2018, and it was stamp-filed in this Court on
June 11, 2018. Petitioner brings two claims in her motion to vacate: (1) a
claim pursuant to the Supreme Court case of Sessions v. Dimaya, 138 S. Ct.
1204 (2018), issued on April 17, 2018; and (2) an ineffective assistance of
counsel claim. Although Petitioner’s Dimaya claim appears to be timely
because the claim was filed within one year of Dimaya, it appears that
Petitioner’s ineffective assistance of counsel claim is untimely. In Section 18
of the petition regarding timeliness, Petitioner states only that her petition is
timely based on “new Supreme Court case law as of April 17, 2018.” [Doc.
1 at 10]. Thus, Petitioner has addressed timeliness only as to her Dimaya
claim.
The Court will grant Petitioner thirty (30) days to file a response
explaining why her ineffective assistance of counsel claim 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
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pursuant to Hill for determination of timeliness of § 2255 Motion). Once
Petitioner files her response, the Court will prepare an order reviewing both
of her claims.1
IT IS, THEREFORE, ORDERED that Petitioner shall have thirty (30)
days from the entry of this Order to file a written response, explaining why
her ineffective assistance of counsel claim should not be dismissed as
untimely. If Petitioner does not file such response within thirty (30) days from
the entry of this Order, the ineffective assistance of counsel claim may be
dismissed without further notice.
IT IS SO ORDERED.
Signed: September 25, 2018

It appears that the Dimaya holding does not apply to Petitioner’s conviction or sentence,
but the Court will address the merits of that issue in a subsequent order after Petitioner
addresses the timeliness issue as to her ineffective assistance of counsel claim.
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