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 Rita Marshal
O'Neil. For the reasons stated below, the Court dismisses
Factual and Procedural History
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.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).
13, 2016,  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. 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.
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 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)).
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 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).
Timeliness under AEDPA
Government argues that Petitioner's § 2255 petition
should be dismissed as untimely. The Court agrees.
the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA), a § 2255 petition must be filed within one ...