Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ward v. United States

United States District Court, D. South Carolina, Florence Division

June 13, 2017

David Damont Ward, PETITIONER
United States of America, RESPONDENT C/A No. 4:16-cv-00634-TLW


          Terry L. Wooten Chief United States District Judge.

         This 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 petition.

         I. Factual and Procedural History

         Petitioner 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).

         Petitioner 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.

         After 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.

         On February 22, 2016, [1] 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.

         This matter is now ripe for decision.

         II. 28 U.S.C. § 2255

         Title 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)).

         In 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.

         III. Standard of Review

         Petitioner 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).

         IV. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.