United States District Court, District of South Carolina, Florence Division
R. BRYAN HARWELL UNITED STATES DISTRICT JUDGE
Pending before the Court is Jerry Vernon Adams, Jr.’s (“Petitioner’s”) pro se Motion to Vacate, Set Aside, or Correct Sentence (“Motion to Vacate”) pursuant to 28 U.S.C. § 2255, see ECF No. 102. For the following reasons, Petitioner’s Motion to Vacate is dismissed.
Procedural History and Factual Background
On December 15, 2009, a federal grand jury returned a one count indictment against Petitioner. See Indictment, ECF No. 2. Count 1 charged Petitioner with knowingly stealing firearms that had moved in interstate commerce. See id. at 1. Count 2 charged Petitioner with being a felon in possession of firearms and ammunition. See Id. at 2.
On July 7, 2010, Petitioner entered into a written plea agreement. See Plea Agreement, ECF No. 45. In the plea agreement, Petitioner agreed to plead guilty to Counts 1 and 2 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 5.
On July 8, 2010, Petitioner pled guilty and the Court questioned him regarding the plea agreement. See Minute Entry, ECF No. 46; Plea Colloquy Transcript, ECF No. 85. On February 23, 2012, the Court sentenced Petitioner to a term of 180 months. See Minute Entry, ECF No. 61; Judgment, ECF No. 63.
Petitioner appealed the Court’s judgment, claiming that his prior convictions for (1) assault and battery of a high and aggravated nature (“ABHAN”); (2) discharging a firearm into a dwelling; (3) felony breaking or entering; and (4) burglary in the second degree should not have been counted as predicate felonies for armed career criminal purposes. See United States v. Adams, 457 F. App’x 338, 339 (4th Cir. 2011). The Fourth Circuit affirmed Petitioner’s sentence on December 15, 2011. See Id. at 340.
On August 6, 2012, the Government filed a motion to reduce Petitioner’s sentence for providing substantial assistance pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. See Mot. to Reduce Sentence, ECF No. 96. The Court granted this motion on October 30, 2012, and Petitioner was resentenced to a term of imprisonment of 130 months. See Minute Entry, ECF No. 99; Amended Judgment, ECF No. 100.
On December 12, 2013, Petitioner filed the instant Motion to Vacate. See ECF No. 102. On February 3, 2014, the Government filed a Motion for Summary Judgment and memorandum in support, asserting that Petitioner’s motion is without merit. See ECF Nos. 111–12. An Order filed February 4, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advised Petitioner of the dismissal procedure and the possible consequences if he failed to respond adequately. See Order, ECF No. 113. Petitioner timely filed a response in opposition to Defendant’s motion on February 27, 2014. See Pet.’s Resp., ECF No. 115.
Petitioner’s Motion to Vacate alleges the following ground for relief:
Ground 1: Defendant is actually innocent of the Armed Career Criminal Enhancement under 21 U.S.C. § 924(e).
ECF No. 102 at 3.
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 ...