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Whitmire v. United States

United States District Court, D. South Carolina, Florence Division

February 29, 2016

George William Whitmire, PETITIONER
v.
United States of America, RESPONDENT C/A No. 4:15-cv-03406-TLW

ORDER

Terry L. Wooten Chief United States District Judge

This matter comes before the Court for consideration of the pro se petition to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner George William Whitmire. For the reasons stated below, the Court dismisses the petition.

I. Factual and Procedural History

Petitioner was charged with felon in possession of a firearm under 18 U.S.C. § 922(g)(1) (Count 1), possession of a firearm during and in relation to a drug trafficking crime under 18 U.S.C. § 924(c) (Count 3), and stealing a firearm under 18 U.S.C. § 924(l) (Count 4), and he pled guilty to all three counts. The Court sentenced him to 300 months on the felon in possession and 924(c) counts, and 120 months on the stolen firearm count, all to run concurrently.[1] Judgment was entered on March 25, 2005. ECF No. 51. He did not file a direct appeal.

On August 24, 2015, [2] Petitioner filed this § 2255 petition, asserting that he was wrongfully sentenced as an armed career criminal in light of the Supreme Court’s recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015). ECF Nos. 62, 68-1. The Government filed a motion to dismiss based on the concurrent sentence doctrine and that, even after Johnson, he had other convictions that would qualify him as an armed career criminal. ECF No. 72. He then filed a reply and a cross-motion for summary judgment. ECF Nos. 77, 78.

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, liberally construing Petitioner’s filings, 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).

IV. Discussion

As noted above, Petitioner asserts that he is entitled to relief in light of Johnson- specifically, that he was wrongfully convicted as an armed ...


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