United States District Court, District of South Carolina, Florence Division
R. Bryan Harwell United States District Judge
Pending before the Court is Franklin Mackensie Robinson’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. 892. For the following reasons, Petitioner’s Motion to Vacate is dismissed.
Procedural History and Factual Background
On May 26, 2010, a federal grand jury returned a twenty-three count indictment against Petitioner and several co-defendants. See Indictment, ECF No. 3. Petitioner was charged in two of those counts: (1) Count 1 for conspiracy to possess with intent to distribute and to distribute cocaine and cocaine base involving 500 grams or more of cocaine and 50 grams or more of cocaine base; and (2) Count 2 for possession with intent to distribute and distribution of a quantity of cocaine base. See Id. at 1–2.
Petitioner entered a plea of not guilty and proceeded to a trial. Petitioner was tried before a jury from May 9, 2011 through May 12, 2011. See Minute Entries, ECF No. 487–492. On May 12, 2011, the jury found Petitioner guilty on both Count 1 and Count 2. See Jury Verdict, ECF No. 502. On October 13, 2011, the Court sentenced Petitioner to a total term of 360 months. See Minute Entry, ECF No. 623; Judgment, ECF No. 630. Petitioner appealed, and defense counsel filed a brief alleging the following issues: (1) whether the District Court erred in enhancing Petitioner’s sentence due to a mandatory minimum based on activities that took place before he reached the age of eighteen, in violation of the Eighth and Fourteenth Amendments; (2) whether the District Court erred in allowing the chapter four enhancements in the sentencing based on activities that took place before Petitioner reached the age of twenty-one; and (3) whether the District Court erred by allowing a recorded conversation (number 1105 of November 29, 2010) of Petitioner into evidence. On July 24, 2012, the Fourth Circuit Court of Appeals affirmed the District Court’s judgment. See United States v. Robinson, 489 F. App’x 676 (4th Cir. 2012).
On February 10, 2014, Petitioner filed the instant Motion to Vacate. See ECF No. 892. On February 24, 2014, the Government filed a Motion to Dismiss or in the alternative for Summary Judgment, asserting that Petitioner’s Motion was without merit. See ECF Nos. 897 and 898. An Order filed February 25, 2012, 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 ECF No. 899. After receiving an extension of time, Petitioner timely filed a Response in Opposition on May 2, 2014. See ECF No. 909. Plaintiff subsequently filed two additional documents discussing the Fourth Circuit’s panel decision in Whiteside v. United States, 748 F.3d 541 (4th Cir. 2014) in support of his arguments. See ECF Nos. 911 and 928.
Petitioner’s Motion to Vacate alleges the following ground for relief:
Ground 1: Petitioner has a fundamentally defective sentence due to the new retroactive rulings of Descamps, Montes-Flores and Hemingway determining that a South Carolina conviction based off the fact that ABHAN could no longer be used to enhance a sentence and determine whether or not a person is a career offender under the sentencing guidelines therefore establishing that Petitioner’s sentence is defective.
ECF No. 892 at 4.
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 F. 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 F. 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)).
I. Arguments of the Parties