United States District Court, D. South Carolina, Florence Division
TERRY L. WOOTEN CHIEF UNITED STATES 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 Eddie Rickie Blackwell, Jr. (“Petitioner”). For the reasons stated below, the Court dismisses the petition.
I. Factual and Procedural History
Petitioner was a co-defendant named in a sixteen count Indictment issued on July 24, 2012. ECF No. 3. Petitioner was charged in Counts 1 and 2 of the Indictment with drug offenses in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C) and 846.
On February 20, 2013, pursuant to a written plea agreement, Petitioner pled guilty to Count 1 of the Indictment: Conspiracy to Distribute 28 grams of crack cocaine and 500 grams of powder cocaine in violation of 21 U.S.C. § 846. ECF Nos. 243, 245. The plea agreement called for a stipulated sentence of 84 months imprisonment pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). On August 14, 2013, the Court sentenced Petitioner to the stipulated term of 84 months imprisonment. ECF No. 354. Petitioner did not file an appeal.
On August 14, 2014, Petitioner filed this petition under Section 2255 contending that he was denied the effective assistance of counsel due to his attorney’s failure to object to a two- point firearm enhancement he received pursuant to the United States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(b)(1) and, that the two-point increase for the firearm enhancement should not apply as it was based on false information provided by a Drug Enforcement Administration (“DEA”) agent. ECF No. 399 at 13-14. On August 21, 2014, the Government filed a short, but persuasive response opposing the petition as well as a motion for summary judgment. ECF Nos. 400, 401. The Government asserts that Petitioner’s contentions concern guideline issues and are not relevant to his sentence since he pled guilty pursuant to an 11(c)(1)(C) plea agreement that provided for a stipulated sentence. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), the court advised Defendant of the summary judgment procedure and the consequences if he failed to respond.
On September 22, 2014, Petitioner filed a response in opposition to the Government’s motion for summary judgment. ECF No. 405. In his response the Petitioner asserts, among other things, that he is not challenging the 84-month sentence that he bargained for, but instead the two-point enhancement for the firearm, which he contends, if removed, would have no effect on his sentence. Petitioner states that he is prejudiced by the enhancement because it prevents him from benefitting from the Bureau of Prisons Residential Drug Abuse Treatment Program (“RDAP”) a program which this Court recommended that he participate in, as well as other programs offered by the Bureau of Prisons. ECF No. 405 at 3.
II. 28 U.S.C. Section 2255
United States Code, Title 28, Section 2255 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. The statute states four grounds upon which such relief may be claimed: (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; and (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. Generally, “28 U.S.C. § 2255 requires [a] petitioner to prove by a preponderance of the evidence that ‘the 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.’” Leano v. United States, 334 F.Supp.2d 885, 890 (D.S.C. 2004) (quoting 28 U.S.C. § 2255(a)). In Leano, the District Court noted that this is “the proof needed to allege a constitutional error, ” and that “[t]he 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, 334 F.Supp.2d at 890 (quoting United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999)). In deciding a Section 2255 motion, the court need not hold a hearing if "the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. This Court has thoroughly reviewed the motions, files, and records in this case, liberally construing Petitioner's pro se motion, and finds that no hearing is necessary.
III. Standard of Review
Petitioner brings this petition 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 non-moving party and draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255. (1986).
Petitioner alleges two grounds of relief. Petitioner first alleges that his counsel was ineffective for failing to object to the two-point firearm enhancement he received. ECF No. 399 at 13. He next alleges that the two -point firearm enhancement was based on false ...