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 petition to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Dangelo Jerome Gause. For the reasons stated below, the Court dismisses the petition.
I. Factual and Procedural History
Petitioner pled guilty to a drug conspiracy charge, and the Court sentenced him as a career offender to 235 months imprisonment. Both of his career offender predicate convictions were for possession with intent to distribute marijuana. PSR ¶¶ 56, 59. He did not file a direct appeal. His sentence was subsequently reduced to 210 months pursuant to the Fair Sentencing Act, and then reduced again to 180 months pursuant to Amendment 782 to the sentencing guidelines.
On July 28, 2015,  Petitioner filed this § 2255 petition, asserting that he is entitled to relief pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015) and Miller v. United States, 735 F.3d 141 (4th Cir. 2013). The Government filed a motion to dismiss, ECF No. 480, and he filed a reply, ECF No. 484.
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).
As noted above, Petitioner asserts that he is entitled to relief in light of Johnson and Miller-specifically, that he is no longer properly classified as a career offender and should be resentenced. He is incorrect.
As an initial matter, it is not clear that Johnson applies retroactively on collateral review. Compare In re Gieswein, 802 F.3d 1143, 1148-49 (10th Cir. 2015) (declining to grant permission to file a second or successive petition and concluding that the Supreme Court has not found that Johnson applies retroactively in the context of an ACCA sentence), and In re Rivero, 797 F.3d 986, 990-91 (11th Cir. 2015) (declining to grant permission to file a second or successive petition and concluding that Johnson does not apply retroactively in the context of a career offender sentenced under the then-mandatory sentencing guidelines), with Price v. United States, 795 F.3d 731, 732 (7th Cir. 2015) (granting permission to file a second or successive petition and concluding that Johnson applies retroactively in the context of an ACCA sentence). The Fourth Circuit has not yet weighed in on the retroactivity question, though it is currently pending before the court. See In re Scott, No. 15-0291 (4th Cir.); In re Hubbard, No. 15-0276 (4th Cir.). The question of Johnson’s retroactivity is also pending before the Supreme Court. Welch v. United States, No. 15-6418 (Sup. Ct.). However, even if Jo ...