United States District Court, District of South Carolina, Florence Division
R. Bryan Harwell, United States District Judge.
Pending before the Court is Troy Darnell Campbell’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. 138. For the following reasons, Petitioner’s Motion to Vacate is dismissed.
Procedural History and Factual Background
On October 28, 2008, a federal grand jury returned a four count indictment against Petitioner. See Indictment, ECF No. 2. The indictment charged Petitioner with conspiracy to possess with intent to distribute and distribution of 5 grams or more of cocaine base and a quantity of cocaine, possession with intent to distribute and distribution of 5 grams or more of cocaine base and a quantity of cocaine, and two firearm offenses. See id. at 1–4.
On January 8, 2009, Petitioner entered into a written plea agreement. See Plea Agreement, ECF No. 51. In the plea agreement, Petitioner agreed to plead guilty to Count 1 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 1, 5. On April 3, 2009, the Court sentenced Petitioner to a term of 180 months. See Minute Entry, ECF No. 66; Judgment, ECF No. 69.
An appeal has not been filed in this matter. However, on August 7, 2012, Petitioner filed a pro se Motion to Vacate. See ECF No. 105. The Court dismissed this motion to vacate on August 20, 2012, finding that it was time-barred. See Order, ECF No. 106 at 6. Petitioner appealed this Order on September 14, 2012. See Notice of Appeal, ECF No. 109. The Fourth Circuit, however, dismissed the appeal on January 22, 2013. See Opinion, ECF No. 116.
Petitioner subsequently filed the instant Motion to Vacate on June 9, 2014. See ECF No. 127. 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). See Mot., ECF No. 134; Text Order, ECF No. 135. On December 19, 2014, the Fourth Circuit issued its en banc decision in Whiteside, see 775 F.3d 180 (4th Cir. 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 Petitioner’s motion to vacate on January 9, 2015. See ECF No. 145.
Petitioner’s Motion to Vacate alleges the following ground for relief:
Ground 1: Petitioner’s ABHAN offense, is not categorically a predicate “violent felony” for the purpose of applying U.S.S.G. 4B1.1, career offender enhancement in light of Descamps and Hemingway.
ECF No. 127 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 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 ...