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 Kenyon Dajuan
Gaither. ECF No. 609. For the reasons stated below, the Court
dismisses the petition.
Factual and Procedural History
pled guilty to a charge of Conspiracy to Possess with Intent
to Distribute and to Distribute 50 Grams or More of Cocaine
Base and 5 Kilograms or More of Cocaine. ECF Nos. 215, 216.
As set forth in the plea agreement, the Government withdrew
all but one of the 21 U.S.C. § 851 enhancements it had
initially filed, such that Petitioner was held accountable
for only one prior felony drug conviction at sentencing. ECF
No. 212, ¶ 11. Accordingly, the Court sentenced him to a
240-month term of incarceration pursuant to the mandatory
minimum sentence under §§ 841 and 851. ECF Nos.
331, 346, 347. The Fourth Circuit affirmed Petitioner's
conviction and sentence on direct appeal. ECF Nos. 401, 402.
timely filed this § 2255 petition, asserting his
sentence was improperly enhanced under 21 U.S.C. § 851
based on certain prior convictions. ECF No. 609. The
Government filed a response in opposition and motion for
summary judgment. ECF Nos. 613, 614. Petitioner was advised
of his right to file a response to the Government's
motion for summary judgment, ECF No. 616, but he failed to do
so. This matter is now ripe for decision.
28 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,
on a liberal reading of the petition, Petitioner advances two
arguments as to why his sentence was improperly enhanced
under § 851 based on certain prior convictions. First,
he asserts the statutory provisions defining which prior drug
convictions trigger the application of enhanced penalties
under §§ 851 and 841 are unconstitutionally vague.
He cites Johnson v. United States, 135 S.Ct. 2551
(2015) and Welch v. United States, 136 S.Ct. 1257
(2016) as support for this contention. Second, Petitioner
asserts that because he was not sentenced to more than one
year for his prior drug convictions, those convictions do not
qualify as “felony drug offenses” under §
802(44). In support of this argument he cites
Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010).
Court does not find there is merit to this petition. As set
forth in the Government's motion for summary judgment,
because the predicate convictions which increased
Petitioner's statutory minimum sentence were for drug
offenses, the decisions in Johnson and
Welch have no bearing on his case. ECF No. 613 at
4-5. Furthermore, because Gaither could have received more
than one year in prison for each of his prior South Carolina
drug convictions, they each qualify as convictions for
“felony drug offense[s]” under § 802(44),
and thus, Carachuri-Rosendo does not apply to this
case. See id. at 5-7; S.C. Code Ann. §
44-53-370(b)(1) (stating the statutory maximum for
Petitioner's prior drug offenses under South Carolina
law, even for a first offense, is 15 years'
imprisonment). Moreover, the record reflects that Petitioner
stipulated and agreed that he had two or ...