United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
MARGARET B. SEYMOUR, Senior District Judge.
Charles Williams ("Movant"), a prisoner proceeding pro se, seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 16, 2011, a federal grand jury returned a thirteen count indictment against Movant and thirteen co-defendants. Movant was named in two of the thirteen counts and charged with conspiracy to possess with intent to distribute 5 kilograms or more of cocaine, 280 grams or more of cocaine base, and a quantity of marijuana (Count 1); and use of a communication facility in furtherance of a conspiracy to distribute cocaine, cocaine base, and marijuana (Count 10). ECF No 417. On May 23, 2011, Movant pleaded guilty to Count 1 pursuant to a written plea agreement. See ECF No. 525. On June 27, 2011, Movant entered a plea of guilty before the court, and an amended plea agreement correcting the possible penalties was subsequently filed. ECF Nos. 549 & 553.
Prior to sentencing, a presentence investigation report ("PSR") was prepared in which Movant's base offense level was calculated at 36. ECF No. 654 at 16. He received a two-point increase for possession of a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1) and a three-level decrease for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a)-(b). ECF No. 654 at 17. With a total offense level of 35 and a criminal history category of I, Movant's Sentencing Guidelines range was calculated at 168 to 210 months imprisonment. ECF No. 654 at 19. Movant was subject to a statutory minimum term of imprisonment of 120 months. ECF No. 654 at 19. Movant's attorney submitted an objection to the firearm enhancement calculated in the PSR on September 14, 2011. See ECF No. 654-3.
On October 25, 2011, the Government filed a motion to depart from guidelines, recommending that Movant be granted a downward departure based on his substantial assistance with the investigation. ECF No. 705. At a sentencing hearing on October 27, 2011, the court sustained Movant's objection to the firearm enhancement. ECF No. 721. The PSR indicated that two guns were discovered in Movant's home pursuant to a search warrant, and a co-defendant claimed that he had seen Movant with a gun during a drug transaction on at least one occasion. ECF No. 654 at ¶¶ 13, 14, 29. The court declined to apply the gun enhancement because there was no evidence that the guns found when Movant was arrested were ever used in connection with his drug transactions. ECF No. 973-1 at 12-13. In declining to apply the gun enhancement, Movant's total offense level was reduced to 33, resulting in a new Sentencing Guidelines range of 135-168 months.
Subsequently, the court entertained the Government's motion to depart from the guidelines. The Government requested a ten percent reduction in Movant's sentence based on his cooperation with the Government's investigation. Id. at 14-15. The court granted the motion. In addition, the court applied a 1:1 powder cocaine to crack cocaine ratio to determine Movant's sentence. In applying the ratio, Movant's total offense level was reduced to 27 with a Sentencing Guidelines range of 70-87 months. ECF No. 654 at 21. However, because Movant's conviction was subject to a mandatory minimum sentence of 120 months, the court applied the ten percent reduction to the mandatory minimum sentence of 120 months. The court sentenced Movant to 100 months imprisonment to be followed by a five-year term of supervised release. ECF No. 727.
Movant timely filed the within § 2255 motion on August 20, 2012, asserting that he received ineffective assistance of counsel at sentencing. ECF No. 922. On November 8, 2012, the Government filed a motion for summary judgment. ECF No. 973. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court issued an order on November 8, 2012, advising Movant of the summary judgment procedure and the possible consequences if he failed to respond adequately. ECF No. 974. Movant filed a reply to the Government's response on November 29, 2012. ECF No. 995.
II. LEGAL STANDARDS
A. Summary Judgment
Pursuant to Fed.R.Civ.P. 56(a), the court shall grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. The evidence presents a genuine issue of material fact if a "reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The facts and any inferences drawn from the facts should be viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The party seeking summary judgment bears the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party makes this showing, the opposing party must set forth specific facts showing there is a genuine issue for trial. Id.
B. Motions to Vacate Generally
A federal prisoner in custody may challenge the fact or length of his detention by filing a motion pursuant to 28 U.S.C. § 2255. To receive relief under § 2255, a movant is required to prove by a preponderance of the evidence that his 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, or is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). If this showing is made, the court must "vacate and set the judgment aside" and "discharge the prisoner or resentence him or grant a new trial to correct the sentence as may appear appropriate." Id. § 2255(b). If, on the other hand, "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, " the court may summarily deny the motion without holding a hearing. 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 the prisoner is entitled to no relief).
Generally, when a movant attacks his sentence based upon errors that could have been but were not pursued on direct appeal, the movant must show cause and actual prejudice resulting from the errors of which he complains or he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack. See United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982); United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir. 1994)). However, "an ineffective-assistance-ofcounsel claim may be brought in a ...