United States District Court, District of South Carolina, Greenville Division
For USA, Plaintiff: E Jean Howard, LEAD ATTORNEY, U.S. Attorneys Office (Gville), Greenville, SC.
OPINION and ORDER
Timothy M. Cain, United States District Judge.
This matter is before the court on Willie Joe Harrison's (" Harrison") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 63), and the Government's motion for summary judgment (ECF No. 69). Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Harrison of the summary judgment procedure and the consequences if he failed to respond. (ECF No. 70). Harrison failed to respond. (ECF No. 72). For the reasons set forth below, the court finds that a hearing on Harrison's motion is unnecessary and that the Government's motion for summary judgment should be granted.
I. PROCEDURAL HISTORY
On August 2, 2007, a jury convicted Harrison for possession of a firearm by a convicted felon in violation of 18 U.S.C. § § 922(g)(1), 924(a)(2), and 924(e). (ECF No. 30). The Presentence Investigation Report (" PSR") recommended that Harrison's sentence be enhanced under the Armed Career Criminal Act (" ACCA") on the basis of four qualifying convictions: (1) armed robbery; (2) possession with intent to distribute cocaine; (3) second degree criminal sexual conduct with a minor (11-14 years old); and (4) two counts of assault and battery of high and aggravated nature (" ABHAN"). (ECF No. 36). The PSR therefore recommended a sentence of 235 months, and then a supervised release for a period of 5 years. (ECF No. 36-2, p. 2). On November 1, 2007, Harrison was sentenced by then United States District Judge Henry F. Floyd to 220 months in prison, followed by five years' supervised release. (ECF No. 37).
Thereafter, Harrison filed a notice of intent to appeal. (ECF No. 39). He argued that there was insufficient evidence to convict him. (ECF No. 58, p. 2). On July 21, 2008, the Fourth Circuit affirmed his conviction and sentence. (ECF No. 58).
On May 22, 2014, Harrison filed his first motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 63). His motion is based on subsection (f)(3) in light of the United States Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and the Fourth Circuit decision in United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013). (ECF No. 63, p. 14).
II. STANDARD OF REVIEW
Section 2255 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. 28 U.S.C. § 2255. 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. 28 U.S.C. § 2255(a). A prisoner must file the motion within one-year of: (1) the date on which the conviction became final; (2) the date of the removal of a governmental impediment that prevented the prisoner from filing for relief; (3) the date the United States Supreme Court initially recognized a new right that was made retroactively applicable to cases on collateral review; or (4) the date that previously undiscoverable evidence was uncovered. 28 U.S.C. § 2255(f). " If a prisoner cannot fit his petition into the time frame specified by one of these four categories, it must be dismissed as untimely." United States v. Gadsen, 332 F.3d 224, 226 (4th Cir. 2003).
To determine whether Harrison meets the requirements of § 2255(f)(3), the court engages in a three-step inquiry. See United States v. Sanders, 247 F.3d 139, 146 (4th Cir. 2001) (citations omitted). " First, the court must determine the date on which the defendant's conviction became final."  Id. " Second, the court must decide whether the Supreme Court's ruling indeed constitutes a 'new rule' of constitutional criminal procedure." Id. " Third, if the rule is new, then it does not apply retroactively unless it falls within one of the two narrow exceptions to the Teague bar." Id. at 146-47.
A rule is new if " the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); see, e.g., Frazer v. South Carolina, 430 F.3d 696, 704-05 (4th Cir. 2005) (examining the reasoning of the case and underlying authority to determine if the Supreme Court created a new rule). Generally new constitutional rules are not " applicable to those cases which have become final before the new rules are announced." Teague, 489 U.S. at 310. " The strong presumption against retroactive application of new rules of constitutional law is necessary to protect 'the principle of finality which is essential to the operation of our criminal justice system, ' and it is also vital to minimize the intrusion that results when state courts 'faithfully apply existing constitutional law only to have a federal court discover, during a [habeas] proceeding, new constitutional commands.'" United States v. Mathur, 685 F.3d 396, 399 (4th Cir. 2012) (citing Teague, 489 U.S. at 309-10). There are two exceptions to the general rule of Teague v. Lane . " First, 'a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Mathur, 685 F.3d at 399 (quoting Teague, 489 U.S. at 311). " Second, a new procedural rule should apply retroactively if it is 'implicit in the concept of ordered liberty' and if, without the procedure, 'the likelihood of an accurate conviction is seriously diminished.'" Id. (quoting Teague, 489 U.S. at 311).
The ACCA enhances the sentence of defendants who were convicted of possessing a firearm in violation of 18 U.S.C. § 922(g),  and who have three prior convictions for " a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). The term " 'violent felony' means any crime punishable by imprisonment for a term exceeding one year . . . that (i) has as an element the use, attempted use, or threatened use of physical force against the person or another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). When determining whether a crime is a " violent felony, " courts generally use the categorical approach, which examines the statutory definition of the underlying crime. United States v. Montes-Flores, 736 F.3d 357, 364 (4th Cir. 2013) (citations omitted). Accordingly, the focus is not on the underlying conduct of the defendant. Id. (citations omitted). The term " serious drug offense" means, in pertinent part, " an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii).
" 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 all justifiable inferences in its favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In deciding a § 2255 motion, the court is not required to hold a hearing if " the motion and the files and records of the case conclusively show that the prisoner is entitled ...