United States District Court, D. South Carolina, Florence Division
R. BRYAN HARWELL, District Judge.
Pending before the Court is Cornelius Deon Rivers'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. 584. 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 one count indictment against Petitioner and several co-defendants. See Indictment, ECF No. 3. The indictment charged Petitioner with conspiracy to possess with intent to distribute and distribute 50 grams or more of cocaine base and 5 kilograms or more of cocaine. See id. at 1-2.
On July 7, 2009, Petitioner entered into a written plea agreement. See Plea Agreement, ECF No. 188. 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 December 18, 2009, the Court sentenced Petitioner to a term of 240 months. See Minute Entry, ECF No. 276; Judgment, ECF No. 290.
An appeal has not been filed in this matter. However, on December 1, 2014, Petitioner filed the instant Motion to Vacate. See ECF No. 584. On December 22, 2014, the Government filed a motion to dismiss, asserting that Petitioner's motion is without merit. See ECF No. 589. An Order filed December 23, 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. 590. Petitioner timely filed a response in opposition to Defendant's motion on January 26, 2015. See Pet.'s Resp., ECF No. 592.
Petitioner's Motion to Vacate alleges the following ground for relief, copied verbatim:
Ground 1: The movant contend's [sic] that he should be resentenced were as his state prior conviction does not present the career offender enhancement. The movant assert that when applying Simmons information which is retroactive in the Forth Cir. due to intervening change in law. Rivers rely on Simmons, and his cliam [sic] are presented with clear finding in his Memordum [sic] of Law/and Law Argument that when appling [sic] Simmons Relief should be granted without delay.
ECF No. 584 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 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. Parties' ...