United States District Court, D. South Carolina, Florence Division
L. WOOTEN, District Judge.
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. Â§ 2255 filed by Trinity Jaquey Clyburn
("Petitioner"). For the reasons stated below, the
Court dismisses the petition.
Factual and Procedural History
was a co-defendant named in a six count Indictment issued on
December 13, 2005. ECF No. 2. Petitioner was charged in
Counts 1 and 6 of the Indictment with drug offenses in
violation of 21 U.S.C. Â§ 846. On March 31, 2006, the United
States of America ("Government") filed an
Information pursuant to 21 U.S.C. Â§ 851 notifying Petitioner
that the Government was seeking enhanced penalties based upon
Petitioner's prior conviction for trafficking crack
cocaine thus subjecting Petitioner to a statutory mandatory
minimum sentence of 20 years imprisonment. 21 U.S.C. Â§
841(b)(1)(A). ECF No. 44.
5, 2006, pursuant to a written plea agreement, Petitioner
pled guilty to Count 1 of the Indictment, Conspiracy to
Distribute and Possession with Intent to Distribute 50 or
More Grams of Cocaine Base and 5 Kilograms of Cocaine in
violation of 21 U.S.C. Â§ 846, pursuant to a written plea
agreement. ECF Nos. 50, 54. On May 31, 2007, the Court
sentenced Petitioner as a career offender to 264 months
imprisonment. ECF No. 85. The Presentence Investigation
Report reflects that Petitioner was sentenced as a career
offender under the United States Sentencing Guidelines
("U.S.S.G.") because he had two qualifying
predicate state court convictions-Trafficking in Crack
Cocaine and Discharging a Firearm into an Occupied Dwelling.
Petitioner filed a Notice of Appeal on June 8, 2007, and the
Fourth Circuit Court of Appeals affirmed his conviction and
sentence on March 3, 2008. ECF Nos. 86, 103.
11, 2014, Petitioner filed this petition under Section
2255. Relying upon Descamps v. United
States, ___ U.S. ___, 133 S.Ct. 2276 (2013), Petitioner
sets forth a single ground for relief-that he was erroneously
sentenced as a career offender due to the improper
classification of his conviction for trafficking in crack
cocaine as a qualifying career offender predicate offense.
ECF No. 159. On July 22, 2014, the Government filed its
response and moved to dismiss the petition as untimely. ECF
No. 163. The Government asserted that Descamps has
not been made retroactive on collateral review. ECF No.
163-1. On August 11, 2014, Petitioner filed a response
disagreeing with the Government's position. ECF No. 164.
On September 11, 2015, Petitioner filed an additional
response asserting that his categorization as a career
offender is precluded by Johnson v. United States,
___ U.S. ___, 135 S.Ct. 2251 (2015). ECF No.
176. Petitioner contends that under
Johnson, neither of his prior offenses qualify as
predicates under the Armed Career Criminal Act
("ACCA"), 18 U.S.C. Â§ 924(e), and he should not
have been sentenced as a career offender. The matter is now
ripe for decision.
U.S.C. Â§ 2255
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. Â§ 2255. Generally, "28 U.S.C. Â§ 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. Â§ 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 28 U.S.C. Â§ 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. Â§ 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.
Standard of Review
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.
Government argues that Petitioner's Section 2255 motion
should be dismissed as untimely insomuch as it was filed more
than one year after Petitioner's conviction became final.
The Court agrees.
Timeliness Under the Anti-Terrorism and Effective Death
Anti-Terrorism and Effective Death Penalty Act of 1996
("AEDPA") establishes a one-year period of
limitation within which a petitioner must bring any federal
habeas corpus petition. 28 U.S.C. Â§ 2255. According to ...