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Gaddy v. United States

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

August 9, 2017

Mark Steven Gaddy, Petitioner,
v.
United States of America, Respondent. Civil Action No. 4:16-cv-02602-RBH

          ORDER

          R. Bryan Harwell United States District Judge

         This 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.

         On 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 with prejudice.[1]

         Procedural History

         On 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.

         On June 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 entered.

         Petitioner 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.

         Applicable Law

         Prisoners 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.”).

         Discussion

          The government argues that Petitioner's motion to vacate is untimely and must be dismissed. The Court agrees.

         The 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 four dates:

(1) the date on which the judgment of conviction becomes final;
(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 ...

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