United States District Court, D. South Carolina, Florence Division
TERRY L. WOOTEN, Chief District Judge.
This matter comes before the Court for consideration of the pro se motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Jerome Henry. For the reasons stated below, the Court dismisses the petition.
I. Factual and Procedural History
On September 14, 2011, Petitioner pled guilty to Count 1 of the Indictment, which charged him with Conspiracy to Possess With Intent to Distribute and Distribution of 5 Kilograms or More of Cocaine, 280 Grams or More of Cocaine Base, 50 Kilograms or More of Marijuana, and a Quantity of Methylenedioxymethamphetamine. On January 19, 2012, the Court sentenced him to 188 months imprisonment,  followed by a five-year term of supervised release, and Judgment was entered on January 25, 2012. (Doc. #562.) He filed a direct appeal, and the Fourth Circuit affirmed. (Doc. #731.)
On or about August 23, 2013, Petitioner filed this motion under § 2255, stating that a two-point sentencing guideline enhancement he received based on his role in the offense should not have been applied to his case based on the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). (Doc. #785 at 4.) On September 6, 2013, the Government filed a Response and a Motion for Summary Judgment. (Doc. #789, 790.) On October 25, 2013, Petitioner filed a Reply to the Government's Response. (Doc. #805.)
Additionally, on October 15, 2013, Petitioner filed a document entitled "Motion to Vacate Sentence and Reduce Guideline Points and Enhancements Based Upon Federal Rules of Civil Procedure 60(b), USSG, 21 U.S.C.S. 802(44), and Current Appellate and Supreme Court Rulings." (Doc. #803.) The Court will construe this filing as an amendment to his § 2255 petition. In this filing, he asserts that his prior criminal convictions should not have added six points to his criminal history calculation because "[t]he enhancements utilized by the Probation Officer and the prosecutor do not qualify as predicate offenses." (Doc. #803 at 2.)
This matter is now ripe for decision.
II. 28 U.S.C. § 2255
Title 28, Section 2255 of the United States Code provides that a prisoner in custody under sentence of a federal court may file a motion in the court that imposed the sentence to vacate, set aside, or correct the sentence. A petitioner is entitled to relief under § 2255 if he proves by a preponderance of the evidence one of the following: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) (per curiam). "The scope of review of non-constitutional error is more limited than that of constitutional error; a non-constitutional error does not provide a basis for collateral attack unless it involves a fundamental defect which inherently results in a complete miscarriage of justice, ' or is inconsistent with the rudimentary demands of fair procedure.'" Leano v. United States, 334 F.Supp.2d 885, 890 (D.S.C. 2004) (quoting United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999)).
In deciding a § 2255 motion, a court need not hold a hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). The Court has thoroughly reviewed the motions, files, and records in this case, liberally construing Petitioner's pro se filings, and finds that no hearing is necessary.
III. Standard of Review
Petitioner brings this motion pro se. Courts are required to construe liberally pleadings filed by pro se litigants to allow for the development of potentially meritorious claims. See Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam). These pleadings are held to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). However, "[t]he special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
The Government filed a motion for summary judgment. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). At the summary judgment stage, the Court must view the evidence in the light most favorable to the non-moving party and draw ...