United States District Court, D. South Carolina, Florence Division
R. BRYAN HARWELL, District Judge.
Pending before the Court is Travis Bernard Johnson's ("Petitioner's") Motion to Vacate, Set Aside, or Correct Sentence ("Motion to Vacate") pursuant to 28 U.S.C. § 2255, see ECF No. 44. Petitioner is represented by the Federal Public Defender's office for purposes of this motion to vacate. For the following reasons, Petitioner's Motion to Vacate is dismissed.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
On November 18, 2008, a federal grand jury returned a six count indictment against Petitioner. See Indictment, ECF No. 2. The indictment charged Petitioner with various drug and firearm offenses. See id. at 1-4.
On April 9, 2009, Petitioner entered into a written plea agreement. See Plea Agreement, ECF No. 27. In the plea agreement, Petitioner agreed to plead guilty to Counts 5 and 6 of the indictment, and in exchange the Government agreed to move for a downward departure pursuant to United States Sentencing Guideline ("USSG") § 5K1.1, 18 U.S.C. § 3553(e), or Federal Rule of Criminal Procedure 35(b) if it deemed Petitioner's cooperation to constitute substantial assistance. See id. at 6-7. On June 10, 2009, the Court sentenced Petitioner to a total term of 90 months. See Minute Entry, ECF No. 36; Judgment, ECF No. 39.
An appeal has not been filed in this matter. However, on September 19, 2014, Petitioner filed the instant Motion to Vacate. See ECF No. 44. At the Government's request, the matter was stayed pending the Fourth Circuit's en banc review of the panel's decision in Whiteside v. United States, 748 F.3d 541 (4th Cir. 2014). On December 19, 2014, the Fourth Circuit issued its en banc decision in Whiteside, see ___ F.3d ___, 2014 WL 7245453 (4th Cir. Dec. 19, 2014). Accordingly, on December 29, 2014, the Court lifted the stay and directed the Government to file a response. The Government filed a motion to dismiss and response to Petitioner's motion to vacate on December 29, 2014. See ECF Nos. 50-51.
Petitioner's Motion to Vacate alleges the following ground for relief:
Ground 1: The defendant was erroneously found to have a prior conviction for a crime of violence, ABHAN, thereby increasing his offense level under U.S.S.G. Section 2K2.1 to Offense Level 20.
ECF No. 44 at 5.
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 as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).
Petitioner contends that in light of the original panel decision in Whiteside, United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013), and Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (2013), his base offense level was incorrectly determined due to the conclusion that his prior conviction for Assault and Battery of a High and Aggravated Nature ("ABHAN") was a crime of violence. See ECF No. 44-1 at 1. Petitioner contends that, based on the panel's ruling in Whiteside, he ...