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O'Neil v. United States

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

October 5, 2017

Rita Marshal O'Neil, PETITIONER
v.
United States of America, RESPONDENT C/A No. 4:16-cv-01576-TLW

          ORDER

          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 Rita Marshal O'Neil. 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 121 months imprisonment, which was the bottom of her guideline range after a one-level downward variance.[1]ECF No. 667. She filed a direct appeal, but the Fourth Circuit affirmed. United States v. Oneil, 542 F. App'x 225 (4th Cir. 2013). She then filed a petition for a writ of certiorari, which the Supreme Court denied on April 21, 2014. Oneil v. United States, 134 S.Ct. 1911 (2014).

         On May 13, 2016, [2] Petitioner filed this petition under 28 U.S.C. § 2255, asserting that “she was improperly treated as a career offender pursuant to Johnson v. U.S.” ECF No. 892 at 4. She then filed a document entitled, “Motion to Include Additional Information and Ground for 28 U.S.C. 2255 for Amendment Change to 794, ” in which she moved to amend her petition to assert that she should receive the benefit of Amendment 794 to the sentencing guidelines.[3] ECF No. 895. The Government filed a response and a motion to dismiss, asserting that the petition should be denied as untimely, as procedurally defaulted, and on the merits, ECF Nos. 923, 924, and she then filed a response to the Government's motion, ECF No. 945.

         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 she 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 liberally construe 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. Discussion

         A. Timeliness under AEDPA

         The Government argues that Petitioner's § 2255 petition should be dismissed as untimely. The Court agrees.

         Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), a § 2255 petition must be filed within one ...


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