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 motion
to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. The Court denies the motion for the
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 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.
October 18, 2016, the Court granted Petitioner's motion
for a downward variance and sentenced him to a total term of
137 months' imprisonment,  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.
5, 2017,  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,  Petitioner filed
a response in opposition to the Government's motion.
See ECF No. 78.
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
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).
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
§ 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.
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),  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.
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