United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge
matter is before the Court on Petitioner’s pro se [ECF
No. 618] motion to vacate under 28 U.S.C. § 2255 and
[ECF No. 623] amended motion to vacate under 28 U.S.C. §
2255 filed on November 23, 2015, and December 14, 2015,
respectively. Petitioner moves to vacate his sentence arguing
that he was improperly designated as a career offender in
that “the determination of his career offender status
was based upon an alleged offense that [he] did not
commit.” [ECF No. 623, at 4]. On January 4, 2016, the
government filed a motion to dismiss [ECF No. 629] arguing
Petitioner’s motion to vacate is untimely, is not
cognizable on collateral review, and that he was correctly
determined to be a career offender and his prior drug
convictions continue to qualify him for career offender
designation. On January 3, 2016, a Roseboro Order
was issued advising Petitioner that a motion to dismiss
and/or for summary judgment had been filed and that his
failure to respond could result in the dismissal of his case.
See Roseboro v. Garrison, 528 F.2d 309 (4th
Cir.1975). Petitioner did not file a response.
October 28, 2008, Petitioner was indicted, along with several
co-defendants, in a one count indictment that alleged
conspiracy to possess with intent to distribute and
distribution of 50 grams or more of cocaine base and 5
kilograms or more of cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846. On June 15,
2010, the government filed an information pursuant to 21
U.S.C. § 851 advising Petitioner that based on his three
prior drug convictions, he was subject to enhanced penalties.
On September 10, 2010, Petitioner signed a plea agreement
agreeing to plead guilty to count one of the indictment.
Petitioner entered his guilty plea on the same day. The
presentence investigation report (“PSR”) prepared
by the U.S. Probation Office determined that Petitioner was a
career offender under § 4B1.1 of the U.S. Sentencing
Guidelines based on his prior drug convictions. As a result,
Petitioner’s advisory sentencing guideline range was
262 to 327 months. At sentencing, the Court sentenced
Petitioner to 240 months imprisonment followed by 10 years of
supervised release. Petitioner did not appeal his sentence or
conviction. On May 14, 2013, Petitioner was resentenced to
156 months imprisonment pursuant to the Fair Sentencing Act.
Petitioner did not appeal his amended sentence.
in federal custody may attack the validity of their sentences
pursuant to 28 U.S.C. § 2255. In order to move the court
to vacate, set aside, or correct a sentence under §
2255, a petitioner must prove that one of the following
occurred: (1) a sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose such a sentence; (3) the
sentence was in excess of the maximum authorized by law; or
(4) the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255(a). Nonconstitutional claims may be
brought pursuant to § 2255, but will not provide a basis
for collateral attack unless the error involves a
“fundamental defect which inherently results in a
complete miscarriage of justice.” United States v.
Addonizio, 442 U.S. 178, 185, 99 S.Ct., 2235, 2240
(1979); United States v. Morrow, 914 F.2d 608, 613
(4th Cir. 1990).
petitioner cannot ordinarily bring a collateral attack on the
basis of issues litigated on direct appeal. United States
v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013) (stating
petitioner “cannot ‘circumvent a proper ruling .
. . on direct appeal by re-raising the same challenge in a
§ 2255 motion’”); United States v.
Linder, 552 F.3d 391, 396 (4th Cir. 2009);
Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th
Cir.), cert denied, 429 U.S. 863, 97 S.Ct. 169 (1976). An
exception occurs where there has been an intervening change
in the law. Davis v. United States, 417 U.S. 333,
342, 94 S.Ct. 2298, 2302 (1974). Additionally, where a
defendant could have raised a claim on direct appeal but
fails to do so, the claim may only be raised in a federal
habeas proceeding if the defendant can show both cause for
and actual prejudice from the default, see Murray v.
Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d
397 (1986), or that he is actually innocent, see Smith v.
Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d
deciding a motion to vacate, the court may summarily dismiss
the motion “[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief.” Rules
Governing Section 2255 Proceedings 4(b); see 28
U.S.C. § 2255(b) (a hearing is not required on a §
2255 motion if the record of the case conclusively shows that
petitioner is entitled to no relief). An evidentiary hearing
“is required when a movant presents a colorable [ ]
claim showing disputed material facts and a credibility
determination is necessary to resolve the issue.”
United States v. Coon, 205 F. App’x 972, 973
(4th Cir. 2006) (citing United States v.
Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000)).
However, a hearing is not required unless the claim shows
“disputed facts involving inconsistencies beyond the
record.” United States v. Robinson, 238 F.
App’x 954, 955 (4th Cir. 2007). Conclusory allegations
contained within affidavits do not require a hearing.
Strong v. Johnson, 495 F.3d 134, 139-40 (4th Cir.
2007). “Thus, no hearing is required if the
petitioner's allegations ‘cannot be accepted as
true because they are contradicted by the record, inherently
incredible, or conclusions rather than statement of
fact.’ ” Arredondo v. United States, 178
F.3d 778, 782 (6th Cir. 1999) (quoting Engelen v. United
States, 68 F.3d 238, 240 (8th Cir. 1995)).
government has filed its motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. “The
purpose of a Rule 12(b)(6) motion is to test the sufficiency
of a complaint....” Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). To survive
a Rule 12(b)(6) motion, a plaintiff must “give the
defendant fair notice of what the ... claim is and the
grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The facts alleged
must “raise a right to relief above the speculative
level, ” id. at 555, and the complaint must
contain “enough facts to state a claim to relief that
is plausible on its face.” Id. at 570.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009). “[T]he tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not
suffice.” Id. A complaint may survive a motion
to dismiss only if it “states a plausible claim for
relief” that “permit[s] the court to infer more
than the mere possibility of misconduct” based upon
“its judicial experience and common sense.”
Id. at 1950.
was designated a career offender under § 4B1.1 of the
United States Sentencing Guidelines based on at least two
prior drug convictions. Petitioner argues in his motion to
vacate that he was incorrectly designated as a career
offender because he did not commit the prior drug offense
listed in paragraph 32 of the revised presentence
investigation report (“PSR”). Petitioner contends
that his arrest and conviction on Indictment No. 04-GS-13-318
were falsified by the Chesterfield County Sheriff’s
Department for the purpose of obtaining a longer federal
government responds that the PSR is correct and attached the
state court documents to support its contention. A review of
the state court sentencing sheet and indictment indicates
that Petitioner was indicted for distribution of crack
cocaine on March 1, 2004, and pled guilty to the lesser
offense of possession with intent to distribute powder
cocaine on May 2, 2005. Petitioner was then sentenced to a
term of 8 months imprisonment for possession with intent to
distribute powder cocaine. Petitioner did not respond to the
government’s arguments and appears not to challenge the
state court documents that unequivocally show that he was
convicted of the predicate drug charge. Petitioner’s
claim of a county-wide conspiracy to falsify state court
documents in order for Petitioner to obtain a lengthy federal
sentence is incredible and wholly without merit. The Court
finds, therefore, that the PSR correctly determined
Petitioner to be a career offender pursuant to § 4B1.1
of the United States Sentencing Guidelines based on his prior
drug convictions listed at paragraphs 30 and 32 of his PSR.
See [ECF No. 544, at 10].
Petitioner’s challenge to his career offender status
and alleged misapplication of the sentencing guidelines is
not cognizable on a § 2255 motion to vacate. See
United States v. Foote, 784 F.3d 931 (2015) (holding
that a mistaken career offender designation under the United
States Sentencing Guidelines is not cognizable on collateral
the Court finds that Petitioner’s motion to vacate is
untimely as it was filed more than seven years after
Petitioner’s conviction became final and none of the
other three potential triggering ...