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. See ECF Nos. 85 & 88. The
Court denies the motion for the reasons herein.
September 8, 2014, Petitioner pled guilty pursuant to a
written plea agreement to the lesser-included charge in Count
2 of the Superseding Indictment, which charged possession
with intent to distribute fifty grams or more of
methamphetamine and 500 grams or more of a mixture and
substance containing a detectable amount of methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B). See ECF Nos. 39, 58-60. On February 11,
2015, the Court sentenced Petitioner to ninety-six
months' imprisonment followed by a term of supervised
release of four years. See ECF Nos. 65 & 67.
Judgment was entered on February 12, 2015. See ECF
No. 67. Petitioner did not file a direct appeal.
22, 2017,  he filed the instant pro se § 2255
motion. See ECF Nos. 85 & 88. On July
31, 2017, the Government filed a motion to dismiss.
See ECF No. 93. The Court issued a
Roseboroorder notifying Petitioner that a motion to
dismiss or for summary judgment had been filed and that his
failure to respond within thirty-one days could result in the
dismissal of the case. See ECF No. 94. However,
Petitioner did not file a response to the Government's
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).
Government argues Petitioner's § 2255 motion is
untimely and must be dismissed. See ECF No. 93 at
pp. 1-2. The Court agrees.
motion by a federal prisoner for postconviction relief under
28 U.S.C. § 2255 is subject to a one-year time
limitation . . . .” Clay v. United States, 537
U.S. 522, 524 (2003). The one-year limitation period runs
from the latest of the following four dates:
(1) the date on which the judgment of conviction becomes
(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 making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively