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. 560]
pro se motion to vacate pursuant to 28 U.S.C. § 2255.
Petitioner asserts three grounds and claims that: 1) ground
one - trial counsel was ineffective for providing bad advice
with respect to the plea agreement and guilty plea; 2) ground
two - trial counsel was ineffective for failing to challenge
the sufficiency of the factual basis for the guilty plea; and
3) ground three - trial counsel was ineffective for failing
to object to his career offender designation under the
Sentencing Guidelines. Also pending is Petitioner's [ECF
No. 627] motion to amend his § 2255 motion to vacate.
November 30, 2016, the government filed a response and motion
to dismiss arguing that each of Petitioner's claims were
without merit. On January 18, 2017, Assistant Federal Public
Defender Mike Meetze filed a response in opposition to the
government's motion to dismiss and addressed the limited
issue of whether or not Petitioner's Rule 11(c)(1)(C)
plea agreement was based on the sentencing guidelines.
Petitioner then filed a pro se response in opposition to the
government's motion to dismiss and addressed the
ineffective assistance of counsel claims. For the reasons
stated below, the Court grants the government's motion to
dismiss, dismisses Petitioner's motion to vacate, and
dismisses this case with prejudice.
August 28, 2012, Petitioner was indicted for conspiracy to
possess with intent to distribute and distribution of 5
kilograms or more of cocaine, 280 grams or more of crack
cocaine, and a quantity of marijuana. Petitioner was also
named in three substantive counts charging possession with
intent to distribute and distribution of a quantity of
February 8, 2013, an information to establish prior
conviction was filed pursuant to 21 U.S.C. § 851.
8, 2013, Petitioner pled guilty, pursuant to a Rule
11(c)(1)(C) plea agreement, to conspiracy to distribute a
quantity of cocaine and cocaine base in violation of 21
U.S.C. § 846. The plea agreement provided for a
stipulated sentence of 132 months imprisonment. The
presentence investigation report (“PSR”) prepared
by the U.S. Probation Office determined that Petitioner was a
career offender under U.S.S.G. § 4B1.1. Petitioner's
resulting guideline range was 188 to 235 months in prison.
sentencing hearing was held on November 20, 2012, at which
the Court accepted the Rule 11(c)(1)(C) plea agreement and
sentenced Petitioner to 132 months in prison. The judgment
was entered on November 22, 2013.
filed an untimely notice of appeal on January 23, 2014. On
August 18, 2014, the Fourth Circuit Court of Appeals affirmed
Petitioner's conviction and held that it lacked
jurisdiction to review Petitioner's sentence. The mandate
and judgment were entered on September 29, 2014.
15, 2015, the United States Supreme Court denied
Petitioner's petition for writ of certiorari.
filed the instant motion to vacate under 28 U.S.C. §
2255 on June 14, 2016.
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.”).
Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to have
the assistance of counsel for his defense.” U.S.
Constitution. amend VI. The United States Supreme Court has
interpreted the Sixth Amendment to require that counsel be
effective. Strickland v. Washington, 466 U.S. 668,
686, (1984) (quoting McMann v. Richardson, 397 U.S.
759, 771, n.14 (1970)). In order to prevail on an ineffective
assistance claim, petitioner must satisfy the two-prong test
of Strickland that (1) his “counsel's
representation fell below an objective standard of
reasonableness, ” id. at 688; and (2) that
“there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
694. A reasonable probability is a probability sufficient to