United States District Court, District of South Carolina, Florence Division
TERRY L. WOOTEN, CHIEF UNITED STATES 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 the Petitioner, Sandra Lara (“Petitioner”). Doc. #412. For the reasons stated below, the Court dismisses the petition.
I. Factual and Procedural History
On October 28, 2011, Petitioner pleaded guilty of Conspiracy to Possess With Intent to Distribute and Distribution of 5 Kilograms or More of Cocaine and 50 Grams or More of Cocaine Base in violation of 18 U.S.C. § 1951(a) and Possession of a Firearm in Furtherance of a Crime of Violence in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Docs. #227, 235. Petitioner was sentenced to 135 months of imprisonment. Doc. #298. Thereafter, on September 28, 2012, Petitioner filed a Pro Se Motion to Vacate under 28 U.S.C § 2255 (“first petition”) alleging, among other things, that her attorney did not file a notice of appeal on her behalf despite her request that he do so. Doc. #312. This Court granted the Petitioner’s first §2555 petition only with respect to this notice of appeal claim; the remainder of the Petitioner’s claims were dismissed without prejudice. Doc. #347. Petitioner filed a notice of appeal on March 26, 2013, and on November 21, 2013, the Fourth Circuit Court of Appeals affirmed Petitioner’s conviction and sentence. Docs. #351, 407, 409. No petition for certiorari was filed. Doc. #421 at 1.
Petitioner filed the present § 2255 petition (“second petition) on February 3, 2014. Doc. #412. In it, Petitioner raises two claims, including a claim of ineffective assistance of appellate counsel. On March 11, 2014, Petitioner’s appellate counsel, Kathy Price Elmore, filed an affidavit in response to the ineffective assistance claim. Doc. #419. The Government filed a motion for summary judgment and response in opposition to the second petition on March 17, 2014. Docs. #421, 422. Petitioner’s response to the Government’s motion for summary judgment was due on April 21, 2014; however, the Petitioner has not filed a response. The matter is now ripe for decision.
II. 28 U.S.C. § 2255
United States Code, Title 28, Section 2255 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. The statute states four grounds upon which the prisoner may claim such relief: (1) that the court imposed the sentence 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 exceeded of the maximum authorized by law, and (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C.A. § 2255. “Generally, 28 U.S.C. § 2255 requires [a] petitioner to prove by a preponderance of the evidence 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.’” Leano v. United States, 334 F.Supp.2d 885, 890 (D.S.C. 2004) (quoting 28 U.S.C. § 2255(a)). The Leano court noted that this standard is “the proof needed to allege a constitutional error, ” and that “[t]he 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, 334 F.Supp.2d at 890 (quoting United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999)). In deciding a 28 U.S.C. § 2255 motion, the 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. The Court has thoroughly reviewed the motions, files, and records in this case, liberally construing petitioner's pro se motion, and finds that no hearing is necessary.
III. Standard of Review
The Government filed a response and moved for summary judgment as to all grounds raised by Petitioner. Docs. #421, 422. In examining a motion for summary judgment, the Court must determine whether there exists a genuine issue of material fact. Fed.R.Civ.P. 56. Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” which it believes demonstrate the absence of genuine issues of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Once the moving party meets its responsibilities by making and supporting a motion for summary judgment under Rule 56, the non-moving party must produce “specific facts showing that there is a genuine issue for trial, ” rather than resting upon bald assertions contained in the pleadings. See Celotex, 477 U.S. at 323. Thus, the plain language of Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which element that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue of material fact, ” since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to judgment as a matter of law” because the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Celotex, 477 U.S. at 322-23.
IV. Analysis of Claims
In the present § 2255 motion, Petitioner asserts two claims for relief. See Doc. #412. These two grounds are, as expressed by the Petitioner:
(1) “Defendant was deprived of her right against ‘cruel and unusual’ punishment. Defendant was attributed ‘enhancements’ during the sentencing phase. These ‘enhancements [sic] were not presented to a jury, nor proven beyond a reasonable doubt.” Doc. #412 at 4.
(2) “Defense counsel failed to be available to the defendant, during the crucial period that her direct appeal was due to be filed. The defendant had ‘no’ knowledge, pertaining to her case, because defense counsel would not ...