United States District Court, D. South Carolina, Florence Division
TERR 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 Petitioner William Harry Meyer. For the reasons stated below, the Court dismisses the petition.
I. Factual and Procedural History
Petitioner was indicted on charges of using a computer and the internet to transfer or attempt to transfer obscene material to an individual that he believed had not obtained the age of 16 years (Counts 1-11), transporting child pornography by computer (Count 12), and possessing child pornography that had been shipped in interstate commerce (Count 13). Counts 1-11 and 13 called for terms of imprisonment of up to ten years and Count 12 called for a term of imprisonment of five to twenty years.
On March 31, 2008, he signed a plea agreement in which he agreed to plead guilty to Count 10. During the plea hearing, the Government summarized the plea agreement, stating that the Government would agree to dismiss the remaining counts, but that they could be considered as relevant conduct. Petitioner agreed that these were the terms of the plea agreement. The Court also reviewed the concept of relevant conduct with him and he confirmed that he understood the explanation. He also represented that he had the opportunity to review the plea agreement with his counsel, and that he had met with counsel on a sufficient number of occasions and for a sufficient period of time to discuss his case. He also confirmed that he agreed to waive his right to file a direct appeal.
On October 22, 2008, the Court sentenced him to 120 months imprisonment, followed by a 3-year term of supervised release. Judgment was entered on November 18, 2008. No notice of appeal was filed, even though he signed a form indicating that he wished to appeal. ECF No. 56.
On October 22, 2009, Petitioner filed a § 2255 petition in which he asserted, among other things, that his counsel was ineffective in failing to file a timely notice of appeal after being instructed to do so. The Court granted the petition with respect to this claim, and then vacated and immediately reimposed his conviction, which had the effect of allowing him to file a direct appeal.
Petitioner did file a direct appeal, but the Fourth Circuit dismissed the appeal, concluding that he had knowingly and intelligently waived his right to appeal as part of the plea agreement. United States v. Meyer, 470 F.App'x 123, 124 (4th Cir. 2012).
On or about January 18, 2013,  Petitioner timely filed this § 2255 petition, setting forth two grounds for relief: ineffective assistance of counsel and that his plea was not made knowingly and voluntarily. ECF No. 86. On March 15, 2013, the Government filed a response in opposition and a motion for summary judgment. ECF Nos. 95, 96. On June 26, 2013, he filed a response to the summary judgment motion.
This matter is now ripe for decision.
II. 28 U.S.C. § 2255
Title 28, Section 2255 of the United States Code 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. 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. See 28 U.S.C. § 2255(a); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) (per curiam). "The 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 v. United States, 334 F.Supp.2d 885, 890 (D.S.C. 2004) (quoting United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999)).
In deciding a § 2255 motion, a 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(b). The Court has thoroughly reviewed the motions, files, and records in this case, liberally ...