United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING AS UNTIMELY
PETITIONER'S § 2255 MOTION [DKT. NO. 1] AND
DISMISSING THE CASE WITH PREJUDICE
M. KEELEY UNITED STATES DISTRICT JUDGE
before the Court is the pro se Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence (Dkt. No.
filed by the petitioner, Khalil Brown (“Brown”).
For the reasons that follow, the Court concludes that
Brown's motion is untimely under 28 U.S.C. §
2255(f). Accordingly, the Court DENIES the
motion (Dkt. No. 1), and DISMISSES this case
FACTUAL AND PROCEDURAL BACKGROUND
April 24, 2017, Brown filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255 (Dkt. No.
1). Following a preliminary review of Brown's § 2255
motion under Rule 4 of the Rules Governing Section 2255
Proceedings, the Court concluded that Brown's motion may
be untimely. The Court, therefore, issued a notice pursuant
to Hill v. Braxton, 277 F.3d 701, 707 (4th Cir.
2002) (“Notice”), notifying Brown that his case
may be untimely and warning him that his motion would be
dismissed unless he could demonstrate, within thirty (30)
days, that the applicable statute of limitations does not bar
his claims (Dkt. No. 13). Despite his receipt of the Notice
on June 11, 2019 (Dkt. No. 14), Brown filed no response.
ONE-YEAR LIMITATION PERIOD
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) established a one-year statute of
limitations for filing a habeas petition under § 2255.
Under the AEDPA, the limitation period runs from the latest
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by the 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
(3) the date on which the right 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)(1)-(4). In the Fourth Circuit, when
a § 2255 motion appears untimely and the Government has
not filed a motion to dismiss based on the one-year statute
of limitations, courts must warn petitioners that the case is
subject to dismissal absent a sufficient explanation. See
United States v. Sosa, 364 F.3d 507 (4th Cir. 2004);
Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002).
October 14, 2015, Brown pleaded guilty in this Court to one
count of distribution of heroin within 1, 000 feet of a
protected location, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(C), and 860 (No. 1:14CR89, Dkt. No.
600). The Court entered a judgment on February 24, 2016 (No.
1:14CR89, Dkt. No. 698), which Brown did not appeal.
Federal Rules of Appellate Procedure require that "a
defendant's notice of appeal must be filed in the
district court within 14 days after . . . the entry of either
the judgment or the order being appealed.” Fed. R. App.
P. 4(b)(1)(A). A criminal conviction becomes final at the end
of the appellate process: when the time for a direct appeal
expires and the defendant has not noticed an appeal.
United States v. Oliver, 878 F.3d 120, 125 (4th Cir.
2017). Therefore, Brown's ...