United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DISMISSING CASE WITHOUT
PREJUDICE [DKT. NO. 8]
M. KEELEY UNITED STATES DISTRICT JUDGE.
before the Court is the Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence (Dkt. No.
filed by the petitioner, Clarence Thompson
(“Thompson”). For the reasons that follow, the
Court concludes that Thompson's motion is untimely under
28 U.S.C. § 2255(f)(3). Accordingly, the Court
DISMISSES this case WITHOUT
FACTUAL AND PROCEDURAL BACKGROUND
September 4, 2018, Thompson filed a motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255
(Dkt. No. 1). On that same day, this Court sent Thompson a
Notice of Deficient Pleading, notifying him of the possible
dismissal of his case should he not re-file his motion on the
court-approved form (Dkt. No. 3). On September 26, 2018,
Thompson complied with the Notice of Deficient Pleading and
re-filed his motion on the court-approved form (Dkt. No. 8).
a preliminary review of Thompson's § 2255 motion
under Rule 4 of the Rules Governing Section 2255 Proceedings,
the Court concluded that Thompson's motion may be
untimely and issued a notice pursuant to Hill v.
Braxton, 277 F.3d 701, 707 (4th Cir. 2002), notifying
Thompson that his case may be found to be untimely unless he
could demonstrate why the statute of limitations should be
equitably tolled (Dkt. No. 12). Despite receiving an
extension of the time in which to do so, Thompson has failed
to respond to the Hill v. Braxton Notice (Dkt. Nos.
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).
26, 2015, the Supreme Court decided Johnson v. United
States, 135 S.Ct. 2551, 2563 (2015), which held that the
residual clause of the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(2)(B), was unconstitutionally vague. On April
18, 2016, the Supreme Court held that Johnson