United States District Court, D. South Carolina, Anderson/Greenwood Division
Sharon Baker, Surety Bondsman in amount of $196, 000 for Dillinger Matson Bolden; personal property also posted, Interested Party, Pro se, SC, Sc.
Neddie L Polk, Sr, Surety bondsman for Anthony Tyrone McIntosh, Interested Party, Pro se, Columbia, SC.
For USA, Plaintiff: Alan Lance Crick, U.S. Attorneys Office (Gville), Greenville, SC.
ORDER AND OPINION
J. Michelle Childs, United States District Judge.
This matter is before the court on Petitioner Tarence Jamar Henderson's (" Petitioner") Motion to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (ECF No. 708.) Respondent United States of America filed a response in opposition to Petitioner's motion and contemporaneously moved for summary judgment. (ECF No. 720.)
After reviewing the parties' respective memoranda and the record of the underlying proceedings, the court determines that an evidentiary hearing is unnecessary. For the reasons set forth herein, the court DENIES Petitioner's § 2255 motion and GRANTS summary judgment in favor of the Government.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On December 13, 2011, Petitioner and several co-defendants were indicted by the Grand Jury on numerous charges. (ECF No. 3.) On March 20, 2012, pursuant to a written plea agreement (ECF No. 312), Petitioner pled guilty to Count 1 - conspiracy to distribute 5 kilograms or more of cocaine and 28 grams or more of cocaine base in violation of 21 U.S.C. § § 841(a)(1), (b)(1)(A) and (b)(1)(B) and 846. (ECF No. 325.) In exchange for Petitioner's guilty plea and his efforts to cooperate, the Government agreed to move for the dismissal of the remaining charges of the indictment as set forth in the plea agreement. (Id.) On November 20, 2012, Petitioner was sentenced to one hundred twenty one (121) months imprisonment followed by a term of supervised release of five (5) years. (ECF No. 560.) On November 27, 2012, the judgment was entered. (ECF No. 579.)
Petitioner did not appeal his conviction and sentence. However, on July 12, 2013, Petitioner filed a Motion to Reconsider his sentence. (ECF No. 675.) The Government filed a response on July 25, 2013. (ECF No. 677.) By order dated November 5, 2013, the court treated Petitioner's motion as a request for the court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 701). Petitioner was ordered to amend his motion for relief within 20 days.
On November 22, 2013, Petitioner timely filed this motion pursuant to 28 U.S.C. § 2255 (ECF No. 708.) Respondent filed a response to the motion and a motion for summary judgment on February 20, 2014. (ECF No. 720.)
Petitioner now presents 4 grounds for relief in a Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255. In his motion, Petitioner contends that he received ineffective assistance of counsel at sentencing, the Government acted in bad faith in failing to file a § 5K1.1 Departure Motion, Petitioner's consecutive minimum penalties violates double jeopardy, and the Government failed to provide evidence establishing federal jurisdiction.
II. LEGAL STANDARD AND ANALYSIS
A prisoner in federal custody under sentence of a federal court may petition the court that imposed the sentence to vacate, set aside, or correct the sentence. See 28 U.S.C. § 2255. The prisoner may be entitled to relief upon a showing that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law, and (4) the sentence is otherwise subject to collateral attack. Id. A petitioner collaterally attacking his sentence or conviction pursuant to § 2255 bears the burden of proving his grounds for collateral attack by a preponderance of the evidence. White v. United States, 352 F.Supp.2d 684, 686 (E.D. Va. 2004) (citing Miller v. United States, 261 F.2d 546 (4th Cir. 1958)). In ruling on a § 2255 motion, the court may dismiss the motion without a hearing where it conclusively shows from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief. 28 U.S.C. § 2255(b) (noting that a hearing is not required on a § 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief).
In the First Ground, Petitioner alleges that his Counsel provided ineffective assistance in several instances: Counsel " failed to make any arguments or objections to the calculations in the PSR, " Counsel did not object or make any arguments against " the imposition of a statutory minimum sentence of 120 months imprisonment, " and " counsel failed to make an argument indicating that a § 5K1.1 motion was promised and that Respondent had failed to file such a motion." (ECF No. 708 at 4.) To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate: (1) that the representation of counsel fell below an objective standard of reasonableness; and (2) that the petitioner was prejudiced by counsel's deficiencies to the extent that she was denied a fair trial. See Strickland v. Washington, 466 U.S. 668, 687-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner must show " that there is a reasonable probability that, but for counsel's ...