United States District Court, D. South Carolina, Florence Division
L. Wooten Chief United States District Judge.
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 Terry Bernard
Brantley. For the reasons stated below, the Court dismisses
Factual and Procedural History
pled guilty to a charge of Conspiracy to Possess with Intent
to Distribute 28 Grams or More of Cocaine Base, and he was
sentenced to 204 months incarceration pursuant to a Rule
11(c)(1)(C) agreement. ECF Nos. 119, 157. At his sentencing,
he filed a written waiver of appeal. ECF No. 153. He did not
file a direct appeal.
timely filed this § 2255 petition, asserting that his
counsel was ineffective in failing to object to his drug
weight and criminal history category. ECF No. 178. The
Government filed a response in opposition and motion for
summary judgment. ECF Nos. 187, 188. He was advised of his
right to file a response to the Government's motion for
summary judgment, ECF No. 189, but he failed to do so.
matter is now ripe for decision.
U.S.C. § 2255
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)).
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.
Standard of Review
brings this motion 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).
Government filed a motion for summary judgment. “The
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). At the summary judgment stage, the Court
must view the evidence in the light most favorable to the
non-moving party and draw all justifiable inferences in its
favor. Anderson v. Liberty Lobby Inc., 447 U.S. 242,
prevail on an ineffective assistance claim, Petitioner must
show (1) that counsel's acts or omissions fell below an
objective standard of reasonableness; and (2) that there is a
reasonable probability that, but for counsel's errors,
the result of the proceeding would have been different.
See Strickland v. Washington, 466 U.S. 668, 687-88,
694 (1984); Hooper v. Garraghty, 845 F.2d 471, 475
(4th Cir. 1988). Failure of proof on either prong ends the
matter. United States v. Roane, 378 F.3d 382, 404
(4th Cir. 2004). There is “a strong presumption that
counsel's conduct falls within the wide range of
professional assistance, ” and Petitioner has the
burden of overcoming this presumption. Strickland,