United States District Court, D. South Carolina, Florence Division
TERRY L. WOOTEN, Chief District Judge.
This matter comes before the Court for consideration of the petition to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Lashon Alvin Ladson. For the reasons stated below, the Court dismisses the petition.
I. Factual and Procedural History
Petitioner pled guilty to Felon in Possession of a Firearm and Ammunition, and he was sentenced to 105 months incarceration on September 30, 2009. The PSR reflects that he had a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2) because he had two prior convictions for crimes of violence: (1) Burglary 2nd Degree; and (2) Assault and Battery of a High and Aggravated Nature ("ABHAN"). He has filed a petition under 28 U.S.C. § 2255 in which he argues that his burglary and ABHAN convictions should not have been counted as crimes of violence and that his base offense level therefore should have been lower.
The Court held the § 2255 petition in abeyance pending the Fourth Circuit's en banc consideration of the panel opinion in Whiteside v. United States, 748 F.3d 541 (4th Cir. 2014). After the Fourth Circuit issued its en banc opinion in Whiteside v. United States, 775 F.3d 180 (4th Cir. 2014) (en banc), this Court lifted the abeyance order and directed the Government to respond to the petition. The Government filed a Motion to Dismiss, asserting that the petition should be dismissed as untimely. Petitioner did not file a response.
This matter is now ripe for decision.
II. 28 U.S.C. § 2255
Title 28, Section 2255 of the United States Code provides that a prisoner in custody under sentence of a federal court may file a petition in the court that imposed the sentence to vacate, set aside, or correct the sentence. A petitioner is entitled to relief under § 2255 if he proves by a preponderance of the evidence one of the following: (1) that the sentence was imposed 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 was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) (per curiam). "The 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 v. United States, 334 F.Supp.2d 885, 890 (D.S.C. 2004) (quoting United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999)).
In deciding a § 2255 petition, a 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(b). The Court has thoroughly reviewed the motions, files, and records in this case, and finds that no hearing is necessary.
The Government argues that Petitioner's § 2255 petition should be dismissed as untimely. The Court agrees.
A. Timeliness under AEDPA
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a § 2255 petition must be filed within one year of ...