Dalton v. United States ( 2021 )

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA STATESVILLE DIVISION 5:21-cv-167-KDB (5:18-cr-62-KDB-DSC-1) PHYSIQUE DALTON, ) ) Petitioner, ) ) vs. ) ) ORDER UNITED STATES OF AMERICA, ) ) Respondent. ) ____________________________________) THIS MATTER is before the Court on Petitioner’s pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody, (Doc. No. 1). Petitioner pleaded guilty to one count of possession of a firearm by a convicted felon and was sentenced to 60 months’ imprisonment followed by three years of supervised release.1 (5:18- cr-62 (“CR”) Doc. No. 29). The Judgment was entered on May 15, 2020. (Id.). The Fourth Circuit dismissed Petitioner’s appeal as untimely on November 8, 2021, Fourth Cir. Case No. 20-4615. The instant § 2255 Motion to Vacate was docketed just 21 days later on November 29, 2021.2 (Doc. No. 1). Petitioner asserts claims of ineffective assistance of counsel. A federal judgment becomes final for purposes of § 2255 “when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari,” or, if a petitioner does not seek certiorari, “when the time for filing a certiorari petition expires.” Gonzalez v. Thaler, 565 U.S. 134, 149 (2012) (quoting Clay v. United States, 537 U.S. 522, 532 (2003)). 1 The sentence is consecutive to the sentence imposed in Case No. 5:06-cr-30. (CR Doc. No. 29 at 2). 2 Petitioner failed to certify the date upon which he submitted the Motion to Vacate to prison authorities for mailing. See Rule 3(d), 28 U.S.C. foll. § 2255 (addressing inmate filing). 1 The time for filing a certiorari petition from the Fourth Circuit’s dismissal of Petitioner’s direct appeal has not yet expired. See U.S. Sup. Ct. Rule 13 (90 days from entry of the judgment to file a certiorari petition). The Court will, therefore, dismiss the Motion to Vacate as premature without prejudice for Petitioner to file a § 2255 petition after the Judgment becomes final. See Oliver v. United States, 2021 WL 2187952, at *1 (W.D.N.C. May 28, 2021) (dismissing without prejudice a § 2255 petition that was filed before the period to seek certiorari review had expired); Flores-Rojas v. United States, 2010 WL 92437 (W.D.N.C. Jan. 6, 2010) (dismissing a premature § 2255 petition without prejudice). Moreover, the Court notes that the § 2255 Motion to Vacate, as presently filed, is insufficient to proceed in that it is not verified (signed under penalty of perjury). See Rule 2(b)(5), 28 U.S.C. foll. § 2255; 28 U.S.C. § 1746. Should the Petitioner choose to file a § 2255 petition after his appellate proceedings become final, he must ensure that such is verified and complies with all other timeliness and procedural requirements. IT IS, THEREFORE, ORDERED that: 1. Petitioner’s § 2255 Motion to Vacate, (Doc. No. 1), is DISMISSED without prejudice as premature. 2. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when relief is denied on procedural grounds, a petitioner must establish both that the dispositive procedural 2 ruling is debatable and that the petition states a debatable claim of the denial of a constitutional right). 3. The Clerk of Court is instructed to mail Petitioner a blank § 2255 form and close this case. Signed: December 2, 2021 fel LZeu Foe Kenneth D. Bell ey, United States District Judge % it of