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 David Damont
Ward. For the reasons stated below, the Court dismisses the
Factual and Procedural History
pled guilty to a drug conspiracy charge and was sentenced to
288 months imprisonment. ECF No. 291. He filed a direct
appeal, but the Fourth Circuit affirmed. United States v.
Ward, 439 F. App'x 258 (4th Cir. 2011).
was then resentenced pursuant to the Fair Sentencing Act to
216 months imprisonment. ECF No. 459. He filed a direct
appeal, and in light of several intervening decisions by the
Supreme Court and Fourth Circuit, the Government and he
agreed to a remand and resentencing.
the remand, the parties entered into a supplemental plea
agreement in which they agreed to a sentence of 173 months
imprisonment pursuant to Rule 11(c)(1)(C). ECF No. 525. On
September 10, 2014, the Court imposed the agreed-upon
sentence. After the sentencing, he signed a court-approved
document that stated, “I have been notified by the
court of my right to appeal and that I must do so within
fourteen (14) days of the entry of the judgment. I have
discussed this right with my attorney, ” and he checked
the box stating “I do not want to appeal.” ECF
No. 532. Judgment was entered on September 16, 2014. ECF No.
534. No appeal was filed.
February 22, 2016,  Petitioner filed this petition under 28
U.S.C. § 2255, stating one ground for relief: that his
counsel was ineffective for failing to file a direct appeal
after Petitioner requested that he do so. ECF No. 632. The
Government filed a Response to Petitioner's § 2255
petition and a Motion to Dismiss, asserting that the petition
should be dismissed as untimely, ECF No. 648, and he then
filed a response to the Government's motion, ECF No. 655.
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 pro se filings,
and finds that no hearing is necessary.
Standard of Review
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).