United States District Court, District of South Carolina, Charleston Division
DAVID C. NORTON UNITED STATES DISTRICT JUDGE
This matter is before the court on petitioner Lasonia Moultrie’s (“Moultrie”) motion to vacate, set aside, or correct her federal sentence pursuant to 28 U.S.C. § 2255. The government filed a motion to dismiss, and Moultrie filed a motion for an evidentiary hearing. For the reasons set forth below, the court denies Moultrie’s petition, denies Moultrie’s request for an evidentiary hearing, and grants the government’s motion to dismiss.
On December 15, 2010, Moultrie was named one of thirteen co-defendants in a one count indictment charging Moultrie and her co-defendants with conspiracy to make and pass counterfeit business checks in violation of 18 U.S.C. § 371. At the time of her arrest, Moultrie was on supervised release relating to a 2004 charge of conspiracy to commit bank fraud. See United States v. Moultrie, No. 2:04-cr-00534. Moultrie was released on bond on January 5, 2011 but was arrested for violation of her bond on February 15, 2011. Moultrie entered a guilty plea on March 16, 2011 pursuant to a written plea agreement. The United States Probation Office prepared a Presentence Report (“PSR”) in preparation for Moultrie’s sentencing. Moultrie’s appointed attorney, J. Robert Haley (“Haley”), did not object to the PSR. The court held a sentencing hearing on September 27, 2011 and sentenced Moultrie to 60 months imprisonment for the conspiracy charge and 24 months imprisonment for the supervised release violation in relation to the 2004 charge, to be served consecutively. Additionally, the court ordered Moultrie to pay $222, 773.83 restitution and a special assessment fee of $100.00.
On November 8, 2011, Moultrie filed the instant petition to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. On February 6, 2012, the government filed a motion to dismiss Moultrie’s petition. Moultrie filed a timely response in opposition to the government’s motion on April 17, 2012, making this case ripe for judicial review. Moultrie then filed a motion to amend her motion to vacate on June, 22, 2012 and a motion requesting an evidentiary hearing on October 31, 2012.
II. STANDARDS OF REVIEW
A. Pro Se Petitioner
Moultrie appears pro se in this case. Federal district courts are charged with liberally construing petitions filed by pro se litigants to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9–10 (1980). Pro se petitions are therefore held to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Liberal construction, however, does not mean that a court may ignore a clear failure in the pleading to allege facts that set forth a cognizable claim. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 390–91 (4th Cir. 1990).
B. 28 U.S.C. § 2255
Moultrie proceeds under 28 U.S.C. § 2255(a), which provides that:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Moultrie, as the petitioner, must prove the grounds for collateral attack by a preponderance of the evidence. See King v. United States, No. 05-0218, 2011 WL 3759730, at *2 (D.S.C. Aug. 24, 2011) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).
C. Summary Judgment
If, on a motion to dismiss, the court considers matters outside of the pleadings, such as a party’s supporting memoranda and attachments, the court treats the motion as one for summary judgment. Fed.R.Civ.P. 12(d). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (2010). At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Because, in this case, the court considers matters outside the pleadings, it treats the government’s motion as one for summary judgment.
A district court’s resolution of a prisoner’s § 2255 petition proceeds in two steps: (1) “the district court must determine whether the prisoner has met his burden of showing that his sentence is unlawful on one of the specified grounds” listed in § 2255(a), and (2) “if the prisoner’s sentence is found unlawful on one of these grounds, the district court should grant the prisoner an ‘appropriate’ remedy, which includes discharge, resentencing, or a new trial.” United States v. Pettiford, 612 F.3d 270, 277 (4th Cir. 2010). “If the prisoner fails to show that his sentence is unlawful on one of the specified ...