United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE, SENIOR UNITED STATES DISTRICT JUDGE
pro se, seeks relief in this court pursuant to 28
U.S.C. § 2255. ECF No. 373. The Government filed a
motion for summary judgment and a memorandum in
support/response in opposition to Defendant's § 2255
motion. ECF Nos. 381, 382. Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the court
advised Defendant of the response procedure and the
consequences if he failed to respond. ECF No. 384. Defendant
did not file a response and the time for doing so has
20, 2009, Defendant was indicted (via superseding indictment)
in this court for conspiracy to possess with intent to
distribute cocaine base and cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A), and two counts of
possession with intent to distribute cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and 841
(b)(1)(C). ECF No. 125. On May 6, 2009, the Government filed
an Information pursuant to 21 U.S.C. § 851, notifying
Defendant that he was subject to increased penalties based on
two prior convictions for felony drug offenses: a conviction
for possession with intent to distribute (“PWID”)
crack cocaine, and a conviction for possession of contraband
in jail. ECF No. 122. Defendant filed a reply to the
Information, objecting to the PWID conviction counting as a
prior felony drug conviction, arguing that he was sentenced
under the South Carolina Youthful Offender Act and under the
age of 18. ECF No. 143. He also objected to the contraband
conviction, asserting he did not voluntarily enter a guilty
plea to that charge, but thought he was pleading to a
non-drug charge. Id.
9, 2009, Defendant entered into a written plea agreement to
plead guilty to count 1 of the superseding indictment,
conspiracy to possess with intent to distribute 5 kilograms
or more of cocaine and 50 grams or more of
“crack” cocaine. ECF No. 147. As part of the plea
agreement, Defendant stipulated that he had at least one
prior felony drug conviction (the PWID crack conviction) that
was the subject of an Information filed pursuant to §
851, and which subjected him to a mandatory minimum sentence.
Id. at ¶ 12. In return, the Government agreed
to withdraw the enhancement that remained contested (the
possession of contraband in jail conviction). As a part of
the plea agreement, Defendant waived his right to file a
motion for relief under § 2255 except as to claims of
ineffective assistance of counsel and/or prosecutorial
misconduct. The same day, Defendant appeared before this
court and pled guilty as above. ECF No. 154. At the plea
hearing, Defendant withdrew his challenge to the § 851
enhancement regarding the PWID crack cocaine charge, but
indicated his wish to proceed with the challenge to the
enhancement regarding contraband. ECF No. 153. Towards that
end, Defendant filed a motion to strike prior conviction
regarding the contraband conviction. ECF No. 173.
Pre-Sentence Report (“PSR”) concluded Defendant
had at least two prior felony drug convictions and that he
faced a mandatory sentence of life imprisonment. ECF No. 220.
Under the plea agreement, the Government was to withdraw one
§ 851 enhancement, reducing Defendant's sentence
from life to twenty years. Id. Defendant filed five
objections to the PSR, then withdrew three objections,
leaving the following two objections: 1) an objection to an
increase in his base offense level because the convictions in
paragraphs 33, 34, and 35 of the PSR should have counted as a
single conviction for criminal history purposes; and 2) an
objection to the guideline calculation based on the above
objection. The probation officer declined to amend the PSR.
ECF No. 177-1.
August 17, 2009, Defendant filed a motion to continue the
sentencing hearing scheduled for August 18,
2009. ECF No. 185. Defense counsel had just
learned the Government asserted Defendant failed a polygraph
examination, and would not withdraw the § 851
enhancement for the contraband conviction. Counsel requested
more time to investigate the results of the polygraph
examination. The court denied the motion. ECF No. 186.
However, at the hearing on August 18, 2009, sentencing was
continued until September 2, 2009. ECF No. 198.
September 2, 2009, Defendant appeared for sentencing. ECF No.
213. The court denied Defendant's motion to strike the
§ 851 enhancement for the contraband conviction. The
Government did not withdraw one of the convictions for the
enhancement. The court sentenced Defendant to a mandatory
minimum term of life imprisonment, with ten years of
supervised release to follow. ECF No. 214.
appealed his conviction and life sentence. ECF No. 218. The
issues on appeal were whether the district court erred in
enhancing Defendant's sentence when he allegedly did not
know he was pleading guilty to the contraband offense, and
whether the enhancement was proper when two of his predicate
offenses “may have been consolidated” in state
court. The Fourth Circuit denied the first challenge, to the
contraband offense, as the challenge to the conviction was
precluded by the five-year statute of limitations in §
851(e). ECF No. 296. The court also found that the two
predicate offenses “that may have been
consolidated” were in fact two separate offenses and
that Defendant's sentence was procedurally and
substantively reasonable. Id.
27, 2016, Defendant filed a § 2244 motion with the
Fourth Circuit, seeking permission to file a second or
successive § 2255 motion in the district court based on
Johnson v. United States, 576 U.S. ___, 135 S.Ct.
2551 (2015). In re: Michael Dixon, No. 16-9682 (4th
Cir. 2016). On July 14, 2016, the Fourth Circuit issued an
Order denying Defendant's motion as unnecessary, because
Defendant had never filed a previous § 2255 and
therefore did not require permission to file a § 2255
motion in the district court. ECF No. 372. Defendant's
§ 2255 motion was filed in this court on July 14, 2016.
ECF No. 373.
Johnson and Welch
26, 2015, the Supreme Court held that the residual clause of
the Armed Career Criminal Act (“ACCA”) violates
due process as it “denies fair notice to defendants and
invites arbitrary enforcement by judges.” 576 U.S. at
___, 135 S.Ct. 2551 (2015). By holding the ACCA residual
clause unconstitutionally vague, the Court narrowed the
predicate offenses that could serve to enhance a sentence to
those that qualify under the enumerated or force clauses. The
ACCA residual clause can no longer support a defendant's
classification as an armed career criminal.
April 18, 2016, the Supreme Court decided Welch v. United
States, 578 U.S. ___, 136 S.Ct. 1257 (2016), holding
that the newly established right recognized in