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Richardson v. United States

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

October 23, 2017

Curtis Richardson, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. Bryan Harwell United States District Judge.

         This matter is before the Court on Petitioner's [ECF No. 228] pro se motion to vacate pursuant to 28 U.S.C. § 2255.

         On 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 with prejudice.[1]

         Procedural History

         On July 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.

         On 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.

         Petitioner 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.

         On 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.

         Applicable Law

         Prisoners 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.”).

         Discussion

         Issues Raised on Direct Appeal/Procedural Default/Cognizability of Sentencing Guideline Errors

         A 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 434 (1986).

         The 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 ...


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