United States District Court, D. South Carolina, Aiken Division
Julia H. Johnson, Movant,
United States of America, Respondent.
ORDER AND OPINION
MARGARET B. SEYMOUR, Senior District Judge.
Julia H. Johnson ("Movant"), a prisoner proceeding pro se, seeks to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 21, 2011, a federal grand jury returned a one count indictment against Movant and six co-defendants charging them with conspiracy to possess with intent to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine. ECF No. 2. On January 10, 2012, the Government filed an Information pursuant to 21 U.S.C. § 851 to establish Movant's 2009 state conviction for attempting to obtain drugs by fraud, in violation of S.C. Code Ann. § 44-53-40, as a felony drug offense. ECF No. 148. Movant did not file a response to the Information. On April 25, 2012, Movant entered a plea of guilty to the indictment pursuant to a written plea agreement. See ECF Nos. 182 & 192.
Prior to sentencing, a presentence investigation report ("PSR") was prepared in which Movant's base offense level was calculated at 32. ECF No. 281 at 20. Her total offense level was calculated at 31 after the addition of a two-point increase for possession of a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1) and subtraction of three points for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a)-(b). ECF No. 281 at 20. With a total offense level of 31 and a criminal history category of V, Movant's Sentencing Guidelines range was calculated at 168 to 210 months imprisonment. ECF No. 28-2 at 1. However, Movant was subject to a statutory minimum term of imprisonment of 240 months. ECF No. 281-2 at 1. Movant's attorney submitted ten objections to the PSR on July 15, 2012. See ECF No. 281-1.
At the sentencing hearing on November 1, 2012, Movant withdrew eight objections. Subsequently, the court entertained Movant's argument and objection to the information filed pursuant to 28 U.S.C. § 851 regarding Movant's 2009 conviction in South Carolina for attempting to obtain drugs by fraud. Although, Movant did not challenge the validity of her prior conviction in writing prior to sentencing pursuant to 21 U.S.C. § 851(c), Movant attempted to argue against the accuracy of the state conviction at the sentencing hearing. ECF No. 307 at 10-12. Specifically, Movant argued that the Information in the state case listed a different statute than the Indictment in the state case, and that the transcript listed the wrong defense attorney. ECF No. 307 at 11. However, after reviewing the indictment, sentencing document, and transcript in the state case, the court determined that Movant had been convicted in state court for violating S.C. Code Ann. § 44-53-40. The court also determined that the trial court indicated the maximum penalty was two years. ECF No. 307 at 30-31. Movant also argued that her state conviction was a fraud conviction and not a drug conviction that would count as a felony drug offense. ECF No. 307 at 6-8. The court was not convinced, and ultimately overruled Movant's objection to the use of her 2009 conviction as a felony drug conviction for enhanced penalties. As a result, Movant was subject to a twenty year minimum sentence based on her prior felony conviction, instead of a ten year minimum sentence. See 21 U.S.C. § 841(b)(1)(A). The court also heard argument and testimony regarding Movant's objection to the gun enhancement. The court overruled Movant's objection to the gun enhancement. ECF No. 273. The court sentenced Movant to the Bureau of Prisons for 240-months, or twenty years. ECF No. 285.
Movant timely filed the within § 2255 motion on March 22, 2013. ECF No. 299. That same day, this court issued an order directing the Government to file a response to Movant's § 2255 motion. ECF No. 300. On June 10, 2013, the Government filed a response in opposition to Movant's § 2255 motion. ECF No. 311. The Government also filed a motion for summary judgment. ECF No. 312. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court issued an order on June 10, 2013, advising Movant of the summary judgment procedure and the possible consequences if she failed to respond adequately. ECF No. 313. Movant subsequently filed a number of motions, including two motions to withdraw her motion to vacate; a motion to amend her motion to vacate; and a motion for leave to file objections to the Government's motion for summary judgment. ECF Nos. 315, 327, 328, 329. On October 7, 2013, the court granted her motion to withdraw the motion to vacate and granted the motion to amend the motion to vacate. ECF No. 330. The remaining motions filed by Movant were deemed moot by the court. Id.
Subsequently, Movant filed an amended motion to vacate pursuant to 28 U.S.C. § 2255. ECF No. 337. The Government filed a response in opposition on October 16, 2013. ECF No. 342. The court again issued an order pursuant to Roseboro explaining the summary judgment procedures to Movant and directing Movant to respond. ECF No. 343. On December 6, 2013, Movant filed a reply to the Government's response. ECF No. 347. On June 12, 2014, Movant filed another pro se motion to vacate pursuant to § 2255. ECF No. 377. On June 27, 2014, the court issued an order construing the June 12, 2014, motion to vacate as a second amendment to the motion to vacate filed on March 22, 2013. ECF No. 379. Movant has also filed two motions to appoint counsel. ECF Nos. 298, 376.
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-of-counsel claim may be brought in a ...