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 the Petitioner, Lacey Leroy McClam, Jr. ("Petitioner"). Doc. #186. For the reasons stated below, the Court dismisses the petition.
I. Factual and Procedural History
Petitioner was convicted in a jury trial for armed robbery in violation of 18 U.S.C. § 1951(a) and possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). See Doc. #96. Petitioner was sentenced to 276 months of imprisonment. Doc. #125. Thereafter, Petitioner's trial counsel Kirk Truslow ("Truslow") filed an Anders brief asserting that there were no meritorious grounds for appeal but questioning the sufficiency of the evidence and reasonableness of the sentence. United States v. McClam, 417 Fed.Appx. 281, 282 (4th Cir. 2011). In questioning the sentence, Truslow specifically suggested that the District Court erred by relying on acquitted and uncharged conduct to support an upward departure and variance. Id . Petitioner filed a pro se supplemental brief, asserting that the District Court procedurally erred by including the consecutive sentence on the § 924(c) count in establishing the guideline range. Id.
On appeal, the Fourth Circuit Court of Appeals found that the District Court procedurally erred in establishing the starting point for the departure or variance. Id. at 283. The Fourth Circuit affirmed Petitioner's convictions, vacated the sentence, and remanded the case to the District Court for resentencing. Id . On remand, the District Court sentenced the Petitioner to 192 months for the armed robbery conviction and 84 months for the possession of a firearm in furtherance of a crime of violence conviction, for a total of 276 months. Doc. #161. At the resentencing, the District Court explained its upward departure by citing Petitioner's acquitted robberies, acquitted 924(c) charges, and uncharged conduct. See Doc. #201 at 2.
On May 23, 2013, Petitioner filed the present motion to vacate pursuant to 28 U.S.C. § 2255. Doc. #186. Following the Court's grant of an extension of time, Doc. #191, Petitioner filed a memorandum in support of his claims, Doc. #193. Truslow filed an affidavit in response to the Petitioner's § 2255 motion on August 1, 2013. Doc. #200. Thereafter, the Government filed a Motion for Summary Judgment and Memorandum in Support on August 15, 2013. Docs. #201, 202. Petitioner filed a response in opposition to the Motion for Summary Judgment on September 24, 2013. Doc. #209. The matter is now ripe for decision.
II. 28 U.S.C. § 2255
United States Code, Title 28, 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. The statute states four grounds upon which the prisoner may claim such relief: (1) that the court imposed the sentence 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 exceeded of the maximum authorized by law, and (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C.A. § 2255. "Generally, 28 U.S.C. § 2255 requires [a] petitioner to prove by a preponderance of the evidence that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law.'" Leano v. United States , 334 F.Supp.2d 885, 890 (D.S.C. 2004) (quoting 28 U.S.C. § 2255(a)). The Leano court noted that this standard is "the proof needed to allege a constitutional error, " and that "[t]he 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 , 334 F.Supp.2d at 890 (quoting United States v. Mikalajunas , 186 F.3d 490, 495-96 (4th Cir. 1999)). In deciding a 28 U.S.C. § 2255 motion, the 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. The Court has thoroughly reviewed the motions, files, and records in this case, liberally construing petitioner's pro se motion, and finds that no hearing is necessary.
III. Standard of Review
The Government filed a response and moved for summary judgment as to all grounds raised by Petitioner. (Docs. #201, 202). In examining a motion for summary judgment, the Court must determine whether there exists a genuine issue of material fact. Fed.R.Civ.P. 56. Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, " which it believes demonstrate the absence of genuine issues of material fact. Celotex Corporation v. Catrett , 477 U.S. 317, 323 (1986); see also, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986). Once the moving party meets its responsibilities by making and supporting a motion for summary judgment under Rule 56, the non-moving party must produce "specific facts showing that there is a genuine issue for trial, " rather than resting upon bald assertions contained in the pleadings. See Celotex , 477 U.S. at 323. Thus, the plain language of Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which element that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue of material fact, " since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Celotex , 477 U.S. at 322-23.
IV. Analysis of Claims
Through his § 2255 motion and related filings, Petitioner asserts fourteen claims for relief. See Docs. #186, 193, 197, 209. Grounds 1 through 13 are separately numbered and delineated in Petitioner's § 2255 motion, Doc. #186-1; and the Court treats as Ground 14 the Plaintiff's allegations arising out of Alleyne v. United States , 133 S.Ct. 2151 (2013), which appear in the Petitioner's Response in Opposition to Summary Judgment, Doc. #209. These fourteen grounds are, as expressed by the Plaintiff:
(1) "Counsel was ineffective for failing to raise object [sic] to the suggestive in court identification' of McClam when the identification testimony was tainted by law enforcement and was sufficiently lacking indicia of reliability appellate counsel failed to challenge this issue of direct appeal[.]" Doc. #186 at 4 (all-caps removed from original).
(2) "Counsel failed to object to jury instructions that are inconsistent with Bailey v. United States 116 S.Ct. 501 [.]" Id . (all-caps removed from original).
(3) "Defense counsel was ineffective for failure to file and place on direct appeal issues of error using acquitted conduct[.]" Id. at 5 (all-caps removed from original).
(4) "The Government witness Antoine Howard threatened McClams perspective witnesses denying McClam compulsory process[.]" Id . (all-caps removed from original).
(5) "Petitioner states that counsel was ineffective for failure to investigate prospective witnesses before trial and investigate the identification testimony and other exculpatory impeachment evidence, specifically, that the blue Cadillac was not Lacey McClams[.]" Doc. #186-1 at 1 (all-caps removed from original).
(6) "Petitioner states that defense counsel was ineffective for failure to file a motion to sever the offenses because of the prejudicial effect of the joined offense(s) of which Petitioner was acquitted, creating a prejudicial misjoinder[.]" Id . (all-caps removed from original).
(7) "Petitioner states that his trial was prejudiced upon other crimes evidence which violated Federal Rules of Evidence Rule 404(b) thereby violating the Petitioner's right to self incrimination under the Fifth and Fourteenth Amendments[.]" Id . (allcaps removed from original).
(8) "The District Court erred and violated Title 18 United States Code, Section § 3553(a) factors when it considered rehabilitative issues in regards to an upward departure of seven levels[.]" Id. at 2 (all-caps removed from original).
(9) "Petitioner states the enhancement under 2K2.1(b)(5) or (6) was inappropriate double counting and impermissible under Amendment 599 of the United States Sentencing Guidelines." Id . (all-caps removed from original).
(10) "Petitioner states that the multiple gun enhancements attributed to him was [sic] clearly erroneous and prejudicial to Petitioner's sentencing exposure because only one weapon was allegedly used, carried and or possessed by the petitioner." Id . (all-caps removed from original).
(11) "The Petitioner avers that the District Court constructively amended the indictment when the indictment and charges was altered literally and in effect after the Grand Jury has last passed upon it because McClam was charged as a principle, not as an aider and abetter and the District Court changed the identification of the charge not charged in the ...