United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge
matter is before the Court on Petitioner's pro se [ECF
No. 429] motion to vacate pursuant to 28 U.S.C. § 2255.
Petitioner alleges ineffective assistance of counsel
regarding alleged bad advice concerning whether to stipulate
to a 96 month term of imprisonment in a Rule 11(c)(1)(C) plea
agreement. Petitioner alleges trial counsel's advice
resulted in Petitioner not receiving the benefit of Amendment
782 to the United States Sentencing Guidelines.
August 23, 2016, the government filed a response and motion
for summary judgment arguing that Petitioner's motion is
untimely. On August 24, 2016, a Roseboro Order was
issued advising Petitioner that a motion to dismiss and/or
for summary judgment had been filed and that his failure to
respond could result in the dismissal of his case. See
Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975).
Petitioner filed a pro se response to the government's
motion. For the reasons stated below, the Court grants
Respondent's motion for summary judgment, dismisses
Petitioner's motion to vacate, and dismisses this case
February 26, 2013, Petitioner pled guilty, pursuant to a Rule
11(c)(1)(C) plea agreement, to conspiracy to possess with
intent to distribute and distribution of 5 grams of
methamphetamine and 50 grams or more of a mixture and
substance containing a detectable amount of methamphetamine
in violation of 21 U.S.C. § 846. The Rule 11(c)(1)(C)
plea agreement provided for a stipulated sentence of 96
months imprisonment. The presentence investigation report
(“PSR”) prepared by the U.S. Probation Office
determined that Petitioner's sentencing guideline range
was 97 to 121 months in prison based on a total offense level
of 29 and criminal history category of II.
25, 2013, the Court accepted the Rule 11(c)(1)(C) plea
agreement and sentenced Petitioner to 96 months imprisonment.
The judgment was entered on July 2, 2013. Petitioner did not
appeal his conviction or sentence. The deadline for
Petitioner to file a notice of appeal from his conviction and
sentence was July 16, 2013, 14 days after the judgment was
filed the instant motion to vacate pursuant to 28 U.S.C.
§ 2255 on July 19, 2016, the date Petitioner delivered
his motion to the prison mail room.
in federal custody may attack the validity of their sentences
pursuant to 28 U.S.C. § 2255. In order to move the court
to vacate, set aside, or correct a sentence under §
2255, a petitioner must prove that one of the following
occurred: (1) a sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose such a sentence; (3) the
sentence was in excess of the maximum authorized by law; or
(4) the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255(a). “The writ of habeas corpus
and its federal counterpart, 28 U.S.C. § 2255,
‘will not be allowed to do service for an appeal.'
(internal citation omitted) For this reason,
nonconstitutional claims that could have been raised on
appeal, but were not, may not be asserted in collateral
proceedings. (internal citations omitted) Even those
nonconstitutional claims that could not have been asserted on
direct appeal can be raised on collateral review only if the
alleged error constituted ‘a fundamental defect which
inherently results in a complete miscarriage of
justice'”. Stone v. Powell, 428 U.S. 465,
n. 10 (1976); see also United States v. Boyd, No.
02-6242, 2002 WL 1932522, at *1 (4th Cir Aug. 22, 2002)
(“Non-constitutional claims that could have been raised
on direct appeal . . . may not be raised in a collateral
proceeding under § 2255.”).
government argues that Petitioner's motion to vacate is
untimely and must be dismissed. The Court agrees.
enactment of the Antiterrorism and Effective Death Penalty
Act (“AEDPA”) amended § 2255 by imposing a
one-year statute of limitations period for the filing of any
motion under this Section. Accordingly, the one-year period
of limitation begins to run from the latest of the following
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from ...