Stroupe v. USA

Filing 2

ORDER AND NOTICE re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) ordering that Petitioner has 20 days from the entry of this order to file a document explaining why his 2255 motion should not be dismissed as untimely. Signed by District Judge Richard Voorhees on 10/20/11. (Pro se litigant served by US Mail.)(smj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:11cv149-RLV
(5:05cr221-2)
BON ALEXANDER STROUPE,

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Petitioner,
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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 Petitioner’s pro se Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 1.)
Rule 4(b) of the Rules Governing Section 2255 Proceedings directs the district court
assigned a § 2255 motion to 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), 28 U.S.C. §
2255 foll.
For the reasons stated herein, it appears that Petitioner's motion is time-barred. He shall
be given 20 days to file a document explaining to the Court why he believes his motion should
not be dismissed as untimely. Hill v. Braxton, 277 F.3d 701, 706 (4th Cir. 2002) (directing
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); 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).

PROCEDURAL HISTORY
On July 25, 2005, Petitioner was charged in a two-count bill of indictment with
conspiracy to manufacture and possession with the intent to distribute a mixture and substance
containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(B) (2000) (Count 1), and possession of pseudoephedrine, with the intent to
manufacture methamphetamine, and aiding and abetting same, in violation of 21 U.S.C. § 841(c)
(2000), and 18 U.S.C. § 2 (2000) (Count 2). (Case No. 5:05cr221-2, Doc. No.1.) On December
30, 2005, Petitioner entered a straight up guilty plea to both Counts. (Id., Doc. No. 30.). On
June 20, 2006, the undersigned sentenced Petitioner to 181 month concurrent sentences. (Id.,
Doc. No. 37.)
Petitioner appealed, and the Court’s judgment was affirmed by the Fourth Circuit Court
of Appeals on October 22, 2007. (Id., Doc. No. 55.) There is no evidence in the record before
the Court that Petitioner filed a petition for writ of certiorari in the United States Supreme Court.
On October 19, 2011, Petitioner filed the instant Motion to Vacate, contending that his sentences
are invalid in light of the Supreme Court’s decision in Carachuri-Rosendo v. Holder, __ U.S. __,
130 S.Ct. 2577 (2010). (Doc. No. 1.)
DISCUSSION
The Antiterrorism and Effective Death Penalty Act (the “AEDPA”) imposes a one-year
statute of limitations for filing a motion to vacate, set aside or correct sentence, which usually
runs from the date on which the judgment of conviction in the criminal case becomes final. 28
U.S.C. § 2255(f)(1). Here, Petitioner’s conviction and sentence became final on or about
January 30, 2008, when the 90-day period for filing a certiorari petition in the Supreme Court
expired. See Clay v. United States, 537 U.S. 522, 532 (2003). Consequently, Petitioner had
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until on or about January 30, 2009, to file a timely motion to vacate in federal court. See §
2255(f)(1). As Petitioner did not file the instant Motion until October 19, 2011, it appears to be
untimely. See id.
Petitioner contends, however, that his motion is timely pursuant to § 2255(f)(3), under
which the one-year statute of limitations begins to run on “the date on which the right asserted
[by the petitioner] 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.” Petitioner argues that in Carachuri-Rosendo, the Supreme Court newly recognized a
right that is retroactively applicable to his sentences on collateral review.
Even assuming that Petitioner is correct that the Supreme Court recognized a new right
that is retroactively applicable to cases on collateral review, his Motion to Vacate nevertheless
appears to be untimely. Under § 2255(f)(3), the statute of limitations begins to run from the date
on which the right was initially recognized by the Supreme Court. Dodd v. United States, 545
U.S. 353, 375 (2005). Carachuri-Rosendo was decided on June 14, 2010. 130 S.Ct. at 2577.
Petitioner, therefore, had until June 14, 2011 to file a timely motion to vacate under § 2255(f)(3).
Dodd, 545 U.S. at 375. Absent equitable tolling, Petitioner’s Motion is untimely. § 2255(f)(3).
IT IS, THEREFORE, ORDERED that Petitioner has twenty (20) days from the date on
which this Order is entered to file a document in this Court explaining why his § 2255 motion
should not be dismissed as untimely.

Signed: October 20, 2011

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