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 pro se motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Joseph Lavern Robinson ("Petitioner"). For the reasons stated below, the Court dismisses the petition.
I. Factual and Procedural History
On November 19, 2009, a federal grand jury returned a three-count Indictment charging Petitioner with firearm and drug offenses. ECF No. 17. On April 13, 2010, the United States of America ("Government") filed an Information pursuant to 21 U.S.C. § 851 notifying Petitioner that, based upon a prior South Carolina felony conviction for possession of crack cocaine, the Government was seeking enhanced penalties subjecting Petitioner to a mandatory minimum sentence of twenty years imprisonment under 21 U.S.C. § 841(b)(1)(A).
On November 8, 2010, Petitioner entered into a written plea agreement with the Government in which he agreed to plead to Count One of the Indictment. ECF No. 80. The plea agreement included a waiver provision wherein Petitioner agreed to waive the right to contest his conviction or sentence on direct appeal or other post-conviction actions including Section 2255 and called for a stipulated sentence under Federal Rule of Criminal Procedure 11(c)(1)(C) of fifteen years imprisonment. ECF No. 80 ¶¶ 16, 17. On November 8, 2010, Petitioner pled guilty to Conspiracy to Possess with Intent to Distribute and to Distribute more than 50 grams of cocaine base and more than 5 kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1)(a) and (b)(1)(A) and § 846. ECF No. 84. On March 22, 2011, the Court sentenced Petitioner to the stipulated term of 180 imprisonment, followed by a five year term of supervised release and a special assessment of $100.00. ECF No. 103. Petitioner did not file an appeal.
The Presentence Report ("PSR") calculated the Petitioner's total offense level at 35 with a criminal history category of IV and, in consideration of the minimum required by statute, the guideline range for imprisonment was 235 to 293 months pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 5G1.1(c)(2). ECF No. 97-2. On March 22, 2012, Petitioner filed a Section 2255 petition based upon claims of ineffective assistance of counsel. ECF No. 108. In his first claim, he alleged that Attorney Chevron T. Scott ("Attorney Scott") was ineffective in failing to file an appeal on his behalf after being instructed to do so. The Court granted the petition with respect to this claim, and then vacated and immediately reimposed his conviction, which had the effect of allowing him to file a direct appeal. ECF No. 124.
On September 16, 2012, Petitioner filed an appeal. ECF No. 128. On May 28, 2013, the Fourth Circuit Court of Appeals affirmed Petitioner's conviction and dismissed Petitioner's appeal finding that it lacked jurisdiction to consider the appeal under 18 U.S.C. § 3742(c). United States v. Robinson, 521 Fed.Appx. 196 (4th Cir. 2013). On June 6, 2013, the United States Probation office issued a Revised PSR pursuant to the Fair Sentencing Act ("FSA"). The only impact the FSA had on this case was that the term of supervised release decreased from five to four years. On July 30, 2013, the Court resentenced Petitioner under the FSA to 180 month imprisonment followed by a term of supervised release of four years and a special assessment of $100.00. ECF No. 164.
On June 2, 2014, Petitioner filed the instant Section 2255 petition asserting he was deprived of the effective assistance of counsel when Attorney Breibart failed to inform him of a more favorable plea offer and failed to explain the law of conspiracy. ECF 169. Petitioner seeks an evidentiary hearing, appointment of counsel, and to withdraw his plea such that the parties can "revisit the bargaining table." ECF No. 169-1 at 7-8. On June 30, 2014, the Government filed a short, but persuasive response opposing the petition and moved for summary judgment. ECF Nos. 173, 174. The Government argues that the petition should be dismissed because the plea agreement that Petitioner entered into was the most favorable offer from the Government; that his assertions that he did not understand conspiracy due to his attorney's alleged failure to explain it are contradicted by Petitioner's sworn statements during his guilty plea; that an 11(c)(1)(C) plea is not appealable; and that Petitioner waived his rights to file a direct appeal and to file a petition under Section 2255. On August 8, 2014, Petitioner filed a reply to the Government's response and a response opposing the motion for summary judgment. ECF Nos. 177, 178. 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 motion in the court that imposed the sentence to vacate, set aside, or correct the sentence. A petitioner is entitled to relief under Section 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 Section 2255 motion, 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, liberally construing Petitioner's pro se filings, and finds that no hearing is necessary. Additionally, the appointment of counsel is within the discretion of the court, and the court must appoint counsel in a habeas proceeding only "[i]f an evidentiary hearing is required." Rule 8(c) of the Rules Governing Section 2255 Proceedings; see 18 U.S.C. § 3006A(2)(b). Because an evidentiary hearing is not required to resolve Petitioner's Section 2255 motion, it is not necessary for this court to appoint counsel for Petitioner.
III. Standard of Review
Petitioner brings this motion pro se. Courts are required to construe liberally pleadings filed by pro se litigants to allow for the development of potentially meritorious claims. See Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam). These pleadings are held to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). However, "[t]he special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
In this matter, the Government filed a motion for summary judgment. ECF No. 174. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. At the summary judgment stage, the Court must view the evidence in the light most favorable to the nonmoving party and draw ...