United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
matter is before the court on pro se Defendant
Gerald Decosta Whaley's (“Defendant”) Motion
to Vacate, Set Aside, or Correct a Sentence by a Person in
Federal Custody pursuant to 28 U.S.C. § 2255. (ECF No.
252.) The United States of America (“Government”)
filed a response in opposition to Defendant's Motion, and
contemporaneously moved for summary judgment. (ECF Nos. 267,
268.) Pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), the court advised Defendant of the summary
judgment procedure and the consequences if he failed to
respond. Defendant has filed his response, and the matter is
now ripe for resolution.
prisoner in federal custody under sentence of a federal court
may petition the court that imposed the sentence to vacate,
set aside, or correct the sentence. See 28 U.S.C.
§ 2255. The prisoner may be entitled to relief upon a
showing: (1) that the sentence was imposed in violation of
the Constitution or laws of the United States; (2) that the
court was without jurisdiction to impose such sentence; (3)
that the sentence was in excess of the maximum authorized by
law; and (4) that the sentence is otherwise subject to
collateral attack. Id. A petitioner collaterally
attacking his sentence or conviction pursuant to § 2255
bears the burden of proving his grounds for collateral attack
by a preponderance of the evidence. White v. United
States, 352 F.Supp.2d 684, 686 (E.D. Va. 2004) (citing
Miller v. United States, 261 F.2d 546 (4th Cir.
1958)). In ruling on a § 2255 motion, the court may
dismiss the motion without a hearing where “it plainly
appears from the motion, any attached exhibits, and the
record of prior proceedings, that the moving party is not
entitled to relief.” 28 U.S.C. § 2255(b) (noting
that a hearing is not required on a § 2255 motion if the
record of the case conclusively shows that petitioner is
entitled to no relief).
Government has also sought summary judgment on
Defendant's claims in this case. “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) (2010). At the summary judgment stage, the court must
view the evidence in the light most favorable to the
non-moving party and draw all justifiable inferences in its
favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
reviewing the parties' respective memoranda and the
record of the underlying proceedings, the court determines
that an evidentiary hearing is unnecessary. For the reasons
set forth herein, the court DENIES
Defendant's Motion to Vacate, Set Aside, or Correct a
Sentence by a Person in Federal Custody pursuant to 28 U.S.C.
§ 2255 (ECF No. 252), and GRANTS the
Government's Motion for Summary Judgment (ECF No. 268).
FACTUAL AND PROCEDURAL BACKGROUND
as early as 2006, and continuing up to the date of his arrest
on February 12, 2013, Defendant and his brother, Troy
Kentrell Whaley, conspired with each other and others, to
knowingly possess with intent to distribute cocaine,
marijuana, and various pills sold as ecstasy. (ECF No. 1.)
Beginning at least as early as 2006, the Drug Enforcement
Administration (“DEA”) began receiving
information from confidential informants and cooperating
defendants that the Whaley brothers were involved in the
armed trafficking of large quantities of marijuana, cocaine,
and pills sold as ecstasy. (ECF No. 267 at 2.)
August 25, 2012, Sgt. Arney L. Lucas with the Orangeburg
Department of Public Safety encountered Defendant at a
convenient store. (Id.) Sgt. Lucas smelled a strong
odor of marijuana inside the convenient store near the cash
register where Defendant was standing in line to pay.
(Id. at 3.) When Defendant approached the counter,
Sgt. Lucas could smell the strong odor of marijuana coming
from his person. (Id.) After Defendant paid the
cashier, he turned and walked out of the store and Sgt. Lucas
noticed that the smell of marijuana left with him.
(Id.) At that point, Sgt. Lucas followed Defendant
out of the store and attempted to speak to him.
(Id.) After Sgt. Lucas told Defendant that he was
law enforcement and he needed to speak with him, he refused
to stop and continued walking away. (Id.) Sgt. Lucas
asked Defendant to stop and at that point Defendant advised
that he just wanted to put his water in his car.
(Id.) Defendant attempted to walk past Sgt. Lucas to
a car, at which point Sgt. Lucas told him not to go to the
car. (Id.) When Defendant tried to push past Sgt.
Lucas, Sgt. Lucas pulled his Taser and told him to stop where
he was. (Id.) Defendant then ran across the street
in an attempt to get away from Sgt. Lucas. (Id.)
brief foot chase, Defendant stopped running and Sgt. Lucas
ordered him to the ground. (Id.) Defendant would not
comply with the commands to get on the ground and began to
reach into his front right pants pocket, at which time Sgt.
Lucas discharged his Taser striking Defendant in the chest.
(Id.) Defendant went to the ground and was then
handcuffed by Corporal Brightwell, who showed up to back up
Sgt. Lucas. (Id.) Defendant was searched and
officers found approximately 4.9 grams of marijuana in his
right front pants pocket, two small baggies containing
approximately 1.4 grams and .9 grams of marijuana in his
right watch pocket, the keys to the vehicle he was attempting
to enter in his left front pants pocket, and $480.00 in his
left rear pants pocket. (Id.)
officers searched the car Defendant was attempting to enter
and located a large clear plastic bag with approximately 40
grams of marijuana inside of the bag. (Id.) Officers
also found two handguns in the vehicle, a Ruger .380 caliber
pistol loaded with 7 rounds of ammunition, and a Glock, model
21 .45 caliber handgun loaded with 25 rounds of ammunition.
(Id. at 4.) Officers also located an extended
magazine for the Ruger pistol that contained 14 rounds of
ammunition. (Id.) Based on this incident, Defendant
was charged with resisting arrest, possession of marijuana
with intent to distribute, and unlawful carrying of a pistol
in violation of South Carolina state law. (Id.) On
January 17, 2013, and in connection with the above referenced
arrest on August 25, 2012, Defendant pled guilty to the
charges in Orangeburg County General Sessions Court.
the original indictment against Defendant and Troy Whaley was
returned in October of 2012, DEA agents applied for and
received authorization from United States Magistrate Judge
Paige Jones Gossett to search the homes of both Whaley
brothers. (Id.) Magistrate Judge Gossett signed the
warrants authorizing the search of the Whaley brothers'
homes on February 8, 2013, and the agents executed the search
warrants on February 12, 2013. (ECF Nos. 48, 49.)
agents conducted the search of Defendant and Kenyetta
Guinyard's (who lived with Defendant) home, they found
more evidence of Defendant's armed drug trafficking. (ECF
No. 267 at 4.) In addition to locating over 8 pounds of
marijuana, various pills, a kilogram wrapper that lab tested
positive for cocaine, drug paraphernalia, and over $100,
000.00 cash, agents located multiple firearms, including a
High Standard Double Nine .22 caliber revolver, a Marlin
model 60 .22 caliber rifle, a Winchester model #94 .30 30
caliber rifle, a Masterpiece Arms ACP .45 caliber pistol, an
Omega model #100 .22 caliber revolver, a Taurus model PT25
.25 auto (caliber) semiautomatic pistol, a Browning Mark 5,
12 gauge shotgun, and a Savage Stevens model 940E, 16 gauge
shotgun. (Id.) During Kenyetta Guinyard's
debriefings, she provided information that the money, drugs,
and firearms found at her residence all belonged to
Defendant, and that she witnessed numerous individuals, many
of whom she did not know, meet with Defendant at her house
for short periods of time. (Id. at 5.)
January 14, 2014, after extensive plea negotiations,
Defendant pled guilty to Count Six of the Superseding
Indictment pursuant to a written plea agreement. (ECF No.
256.) Under the agreement, Defendant was not contractually
obligated to cooperate like his co-defendants and the
Government agreed to dismiss the remaining counts of the
Superseding Indictment in exchange for his plea to Count Six.
(ECF Nos. 209, 256 at 22-26.) During the plea colloquy, the
Government specifically noted that paragraph 7 of
Defendant's plea agreement contained a waiver of his
rights to both direct appeal and to appeal pursuant to §
2255. (ECF No. 256 at 17-25.) The court specifically
questioned Defendant to ensure he understood the agreement.
(Id. at 26.)
during the plea colloquy, Defendant specifically stated that
he understood that the Government considered him a career
offender and that he would not be facing the statutory
mandatory minimum sentence of 5 years, but rather he would
face enhanced penalties as a result of his prior record.
(Id. at 15-16.) Defendant acknowledged that his
counsel had advised him of the fact that the Government
considered him a career offender and he agreed to plead
guilty knowing that fact. (Id. at 16.)
his plea colloquy, Defendant admitted that on February 12,
2013, he possessed numerous firearms in connection with a
drug trafficking offense, that offense being conspiracy to
distribute cocaine and marijuana. (ECF No. 256 at 16.) As
noted in the Presentence Investigation Report
(“PSR”), on February 12, 2013 agents located
eight firearms, various rounds of ammunition, approximately 5
pounds of marijuana, and over ...