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Jackson v. United States

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

October 20, 2017

Jevon Antwain Jackson, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. BRYAN HARWELL UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The Court denies the motion for the reasons herein.[1]

         Background

         On June 14, 2016, Petitioner, represented by attorney Mark C. McLawhorn, pled guilty pursuant to a written plea agreement to (1) possession with intent to distribute a quantity of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and (2) being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See ECF Nos. 2, 35, 39, & 40. The presentence investigation report (“PSR”) prepared by the U.S. Probation Office determined Petitioner was a career offender under United States Sentencing Guideline (“U.S.S.G.”) § 4B1.1[2] based on his two prior South Carolina convictions for possession with intent to distribute cocaine (“PWID cocaine”) and possession with intent to distribute marijuana (“PWID marijuana”). PSR [ECF No. 53] at ¶¶ 25-26, 33, 60. Petitioner's resulting advisory guideline range was 151 to 188 months' imprisonment. Id. at ¶ 81. Petitioner filed a motion seeking a downward variance from the advisory guideline range. See ECF No. 48.

         On October 18, 2016, the Court granted Petitioner's motion for a downward variance and sentenced him to a total term of 137 months' imprisonment, [3] followed by a term of supervised release of three years. See ECF Nos. 51 & 54. Judgment was entered on October 19, 2016; and an amended judgment (correcting a clerical mistake) was entered on October 31, 2016. See ECF Nos. 54 & 58. Petitioner did not file a direct appeal.

         On May 5, 2017, [4] Petitioner filed the instant pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. See ECF Nos. 60 & 64. On June 30, 2017, plea counsel (Mr. McLawhorn) filed an affidavit addressing his representation of Petitioner. See ECF No. 70. On July 20, 2017, the Government filed a Motion to Dismiss/Motion for Summary Judgment. See ECF No. 72. On August 25, 2017, [5] Petitioner filed a response in opposition to the Government's motion. See ECF No. 78.

         Legal Standard

         Prisoners in federal custody may attack the validity of their sentences pursuant to 28 U.S.C. § 2255. For a court to vacate, set aside, or correct a sentence under § 2255, a petitioner must prove 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. For this reason, nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings.” Stone v. Powell, 428 U.S. 465, 478 n.10 (1976) (internal quotation marks and citation 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[.]” Id. (internal quotation marks omitted).

         The district court need not hold an evidentiary hearing on a § 2255 motion 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); see United States v. Thomas, 627 F.3d 534, 538 (4th Cir. 2010). The determination of whether to hold an evidentiary hearing ordinarily is left to the sound discretion of the district court. Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970).

         “When the district court denies § 2255 relief without an evidentiary hearing, the nature of the court's ruling is akin to a ruling on a motion for summary judgment.” United States v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see generally Rule 12 of the Rules Governing Section 2255 Cases (“The Federal Rules of Civil Procedure . . ., to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “The evidence must be viewed in the light most favorable to the non-moving party, with all reasonable inferences drawn in that party's favor. The court therefore cannot weigh the evidence or make credibility determinations.” Reyazuddin v. Montgomery Cty., 789 F.3d 407, 413 (4th Cir. 2015) (internal citation and quotation marks omitted).

         Discussion

         In his § 2255 motion, Petitioner states two related grounds for relief concerning his career offender designation. See ECF Nos. 60 & 64. For analytical purposes, the Court first addresses Ground Two and then Ground One.

         I. Ground Two

         Petitioner alleges his prior convictions for PWID cocaine and PWID marijuana are not controlled substance offenses within the meaning of U.S.S.G. §§ 4B1.1 and 4B1.2. See ECF No. 64 at p. 5; ECF No. 60 at pp. 6-10. Specifically, he argues that under Mathis v. United States, 136 S.Ct. 2243 (2016), [6] a modified categorical approach would have determined that the “distribute” element in his predicate convictions are broader than the elements of a controlled substance offense defined in U.S.S.G. § 4B1.2.

         Petitioner is not entitled to relief on Ground Two. A petitioner generally may not use 28 U.S.C. § 2255 to challenge the calculation of his advisory guideline range. See United States v. Foote, 784 F.3d 931, 935-36 (4th Cir. 2015); United States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999); United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999). “The language of § 2255 makes clear that not every alleged sentencing error can be corrected on collateral review. The Supreme Court has instructed that only those errors presenting a ‘fundamental defect which inherently results in a complete miscarriage of justice' are cognizable.” Foote, 784 F.3d at 932 (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). In Foote, the Fourth Circuit held a § 2255 motion that was based on a subsequently-nullified career offender designation was not a fundamental defect, as required to challenge a sentence on a motion to vacate. Id. at 940. Under Foote, Petitioner's claim-that he was improperly ...


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