United States District Court, D. South Carolina, Florence Division
For USA, Plaintiff (4:11-cr-02077-RBH): Robert F Daley, Jr, LEAD ATTORNEY, Stanley D Ragsdale, U.S. Attorneys Office, Columbia, SC; William E Day, II, U.S. Attorneys Office (Cola), Columbia, SC.
Shawna Michelle Holmes, Petitioner (4:13cv2846), Pro se.
R. Bryan Harwell, United States District Judge.
Pending before the Court is Shawna Michelle Holmes's (" Petitioner's") pro se Motion to Vacate, Set Aside, or Correct Sentence (" Motion to Vacate") pursuant to 28 U.S.C. § 2255. For the following reasons, Petitioner's Motion to Vacate is dismissed.
Procedural History and Factual Background
On August 23, 2011, a federal grand jury returned a seven count indictment against Petitioner. See Indictment, ECF No. 2. Counts 1-5 charged Petitioner with knowingly and with intent to defraud, using one or more unauthorized access devices, and by such conduct obtaining money, goods, and services having an aggregate value of more than $1, 000.00 in violation of 18 U.S.C. § 1029(a)(2). See id . at 1-5. Counts 6 and 7 charged Petitioner with knowingly possessing and using, without lawful authority, a means of identification of another person (the credit card number of another person) during and in relation to using unauthorized access devices, in violation of 18 U.S.C. § 1028A(a)(1). See id . at 6-7.
On March 2, 2012, Petitioner entered into a written plea agreement. See Plea Agreement, ECF No. 36. In the plea agreement, Petitioner agreed to plead guilty to Counts 5 and 6 of the indictment, and in exchange the Government agreed to dismiss Counts 1-4 and 7 if Defendant complied with the terms of the agreement. See id . at 1-3. On April 17, 2012, Defendant pled guilty, and the Court questioned her regarding the plea agreement.
On November 6, 2012, the Court sentenced Petitioner to a total term of 57 months as to Count 5, and a term of two years as to Count 6 to run consecutively to the sentence for Count 5. See Minute Entry, ECF No. 53; Judgment, ECF No. 56.
An appeal has not been filed in this matter. However, on October 18, 2013, Petitioner filed the instant Motion to Vacate. See ECF No. 60. Defense counsel filed an affidavit on November 26, 2013 detailing his representation of Petitioner. See Aff. of T. Case Brittain, Jr., ECF No. 71. Petitioner filed her own affidavit in support of her motion on January 7, 2014. See Aff. of Shawna Holmes, ECF No. 75. On January 9, 2014, the Government filed a Motion for Summary Judgment and memorandum in support, asserting that Petitioner's motion is without merit. See ECF No. 76. An Order filed January 10, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advised Petitioner of the dismissal procedure and the possible consequences if she failed to respond adequately. See Order, ECF No. 77. Petitioner timely filed a response in opposition to Defendant's motion on February 18, 2014. See Pet.'s Resp., ECF No. 80.
Petitioner's Motion to Vacate alleges the following grounds for relief:
Ground 1: Ineffective assistance of counsel.
ECF No. 60 at 4.
Prisoners in federal custody may attack the validity of their sentences pursuant to 28 U.S.C. § 2255. In order to move the court to vacate, set aside, or correct a sentence under § 2255, a petitioner must prove that one of the following occurred: (1) a sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a).
In deciding a motion to vacate, the court may summarily dismiss the motion " [i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rules Governing Section 2255 Proceedings 4(b); see 28 U.S.C. § 2255(b) (a hearing is not required on a § 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief). An evidentiary hearing " is required when a movant presents a colorable  claim showing disputed material facts and a credibility determination is necessary to resolve the issue." United States v. Coon, 205 Fed.App'x 972, 973 (4th Cir. 2006) (citing United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000)). However, a hearing is not required unless the claim shows " disputed facts involving inconsistencies beyond the record." United States v. Robinson, 238 Fed.App'x 954, 955 (4th Cir. 2007). Conclusory allegations contained within affidavits do not require a hearing. Strong v. Johnson, 495 F.3d 134, 139-40 (4th Cir. 2007). " Thus, no hearing is required if the petitioner's allegations 'cannot be accepted ...