United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge.
matter is before the Court on Petitioner's [ECF No. 228]
pro se motion to vacate pursuant to 28 U.S.C. § 2255.
August 8, 2017, the government filed a response and motion to
dismiss arguing (1) the issues raised in the August 2016
§ 2255 motion have been decided against Petitioner by
the Fourth Circuit; (2) the alleged sentencing guideline
errors are not cognizable in a § 2255 motion; (3) the
sentencing guideline error claims raised in the February 2017
amendment were not raised in Petitioner's direct appeal
and therefore Petitioner has procedurally defaulted on those
issues; and (3) his ineffective assistance of counsel claim
is without merit. For the reasons stated below, the Court
grants Respondent's motion to dismiss, dismisses
Petitioner's motion to vacate, and dismisses this case
28, 2015, Petitioner was indicted in a one count indictment
for felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). On
December 7, 2015, the Magistrate Judge granted
Petitioner's request to proceed in his criminal trial pro
se. Assistant Federal Public Defender William Nettles
remained as standby counsel only.
January 15, 2016, with standby counsel present, Petitioner
pled guilty to felon in possession of a firearm in violation
of 18 U.S.C. § 922(g). The Presentence Investigation
Report (“PSR”) prepared by the U.S. Probation
Office determined that Petitioner's advisory guideline
range was 57 to 71 months imprisonment. A sentencing hearing
was held on June 9, 2016. At sentencing, the Court sentenced
Petitioner to 57 months imprisonment. The judgment was
entered on June 10, 2016.
filed a notice of appeal on June 10, 2016. Petitioner filed
the instant motion to vacate on August 30, 2016, while his
direct appeal was still pending. The Fourth Circuit Court of
Appeals affirmed Petitioner's conviction and sentence on
January 3, 2017. The Mandate and Judgment were entered on
February 14, 2017.
February 17, 2017, Petitioner filed a Supplemental Amendment
to his motion to vacate alleging various sentencing guideline
errors with respect to his sentence. On May 26, 2017,
Petitioner filed an amendment to his motion to vacate stating
that each ground for relief was due to ineffective assistance
of standby counsel and/or appellate counsel.
in federal custody may attack the validity of their sentences
pursuant to 28 U.S.C. § 2255. In order to move the court
to vacate, set aside, or correct a sentence under §
2255, a petitioner must prove that 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.'
(internal citation omitted). For this reason,
nonconstitutional claims that could have been raised on
appeal, but were not, may not be asserted in collateral
proceedings. (internal citations 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'”. Stone v. Powell, 428 U.S. 465,
n. 10 (1976); see also United States v. Boyd, No.
02-6242, 2002 WL 1932522, at *1 (4th Cir Aug. 22, 2002)
(“Non-constitutional claims that could have been raised
on direct appeal . . . may not be raised in a collateral
proceeding under § 2255.”).
Raised on Direct Appeal/Procedural Default/Cognizability of
Sentencing Guideline Errors
petitioner cannot ordinarily bring a collateral attack on the
basis of issues litigated on direct appeal. United States
v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013) (stating
petitioner “cannot ‘circumvent a proper ruling .
. . on direct appeal by re-raising the same challenge in a
§ 2255 motion'”); United States v.
Linder, 552 F.3d 391, 396 (4th Cir. 2009);
Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th
Cir.), cert denied, 429 U.S. 863, 97 S.Ct. 169 (1976). An
exception occurs where there has been an intervening change
in the law. Davis v. United States, 417 U.S. 333,
342, 94 S.Ct. 2298, 2302 (1974). Additionally, where a
defendant could have raised a claim on direct appeal but
fails to do so, the claim may only be raised in a federal
habeas proceeding if the defendant can show both cause for
and actual prejudice from the default, see Murray v.
Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d
397 (1986), or that he is actually innocent, see Smith v.
Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d
only two grounds raised in Petitioner's initial motion to
vacate were presented to the Fourth Circuit on direct appeal.
In ground one, Petitioner claims that two prior state
convictions used to enhance his sentence were invalid because
they were uncounseled and not the result of knowing and
voluntary guilty pleas. In ground two, Petitioner claims that
his PSR improperly counted offenses that were too old to be
included in his criminal history score. The Fourth Circuit
addressed both of these ...