DEBORAH K. CHASANOW, District Judge.
Pending is Respondent's Motion to Dismiss the above-captioned Motion to Vacate. ECF No. 39. Respondent asserts the Motion to Vacate is untimely; Petitioner has filed a Response asserting entitlement to equitable tolling of the filing deadline. ECF No. 42. A hearing is unnecessary for dispositive review. See Rule 8(a), Rules Governing Section 2255 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2011).
Petitioner James William Waters ("Waters") was indicted on June 2, 2011, on one count of possession with intent to distribute controlled substances in violation of 21 U.S.C. §841. On April 30, 2012, Waters plead guilty and on June 18, 2012, he was sentenced to serve 100 months imprisonment with four years of supervised release. Waters did not file a direct appeal. Waters' Motion to Vacate pursuant to 28 U.S.C. §2255 was filed on September 14, 2013,  more than fourteen months after Waters' conviction was final.
In his Motion to Vacate, Waters alleges that his trial counsel was ineffective for failing to object to the use of a prior state conviction for possession dated July 6, 2001, and a second-degree assault conviction for which Waters was not represented by counsel for purposes of sentencing guidelines. Additionally, Waters asserts that counsel was ineffective for failing to file a direct appeal. ECF No. 36-1 at pp. 3-12. Waters asserts that there was a miscalculation of the advisory guidelines range because this court adopted an erroneous presentence report. He alleges that those errors impacted the fundamental fairness of the sentencing hearings. Id. at p. 13.
Standard of Review
Under the provisions of 28 U.S.C. §2255, the limitation period runs 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, if that right has been newly 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.
"[T]he one year limitation period is also subject to equitable tolling in those rare instances where B due to circumstances external to the party's own conduct - it would be unconscionable to enforce the limitation against the party.'" Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002), citing Harris v. Hutchinson, 209 F.3d 330 (4th Cir. 2000). As previously explained by this court, to be entitled to equitable tolling, Petitioner must establish that either some wrongful conduct by Respondent contributed to his delay in filing his Motion to Vacate, or that circumstances beyond his control caused the delay. "[A]ny resort to equity must be reserved for those rare instances where... it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Id.
Waters asserts that he is entitled to equitable tolling of the one year filing deadline and in support states that he contacted the Clerk of this court on June 25, 2012, who instructed him to rely upon appointed counsel for further information "referring to direct appeal of his case." ECF No. 42. He states that he requested trial counsel to file a direct appeal in his case on June 18, 2012, the date he was sentenced, and requested that counsel raise discrepancies in the presentence report as a basis for the appeal. He claims that he attempted to contact counsel on several occasions, but was never able to talk directly with counsel. Waters further ...