United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge
before the Court is Petitioner Don Emery Wilson's
(“Petitioner”) pro se [ECF No. 60]
motion to vacate, set aside, or correct sentence
(“motion to vacate”) pursuant to 28 U.S.C. §
2255. Also pending is Petitioner's pro se [ECF
No. 81] motion to appoint counsel and the government's
[ECF No. 70] motion to dismiss or for summary judgment.
History and Factual Background
was indicted on December 8, 2015, in an eleven count count
indictment. [ECF No. 3]. Counts one through five alleged
health care fraud in violation of 18 U.S.C. § 1347.
Count six alleged aggravated identity theft in violation of
18 U.S.C. § 1028A(a)(1). Counts seven and eight alleged
money laundering crimes under 18 U.S.C. 1956(a)(1)(B)(i).
Counts nine, ten, and eleven alleged money laundering crimes
under 18 U.S.C. § 1957.
14, 2016, Petitioner signed a plea agreement wherein
Petitioner agreed to plead guilty to counts four (health care
fraud) and count seven (money laundering). [ECF No. 42].
Petitioner entered his guilty plea on July 25, 2016. [ECF No.
presentence investigation report (“PSR”) dated
October 21, 2016, and revised on November 4, 2016, was
prepared by the U.S. Probation Office. The PSR found that
Petitioner's advisory guideline range was 37 to 46
months, based on a total offense level of 21 and criminal
history category of I.
February 13, 2017, Petitioner was sentenced to a 37 month
term of imprisonment on counts 4 and 7, to run concurrently.
[ECF No. 57]. Petitioner was also placed on supervised
release for 3 years upon his release from prison and ordered
to pay restitution in the amount of $348, 723.53.
was entered on February 14, 2017. [ECF No. 57].
filed the instant motion to vacate pursuant to 28 U.S.C.
§ 2255 on March 1, 2017. [ECF No. 60]. The government
filed a response to Petitioner's motion to vacate and a
motion to dismiss or for summary judgment on March 21, 2017.
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). Nonconstitutional claims may be
brought pursuant to § 2255, but will not provide a basis
for collateral attack unless the error involves a
“fundamental defect which inherently results in a
complete miscarriage of justice.” United States v.
Addonizio, 442 U.S. 178, 185, 99 S.Ct., 2235, 2240
(1979); United States v. Morrow, 914 F.2d 608, 613
(4th Cir. 1990).
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
deciding a motion to vacate, the court may summarily dismiss
the motion “[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief.” Rules
Governing Section 2255 Proceedings 4(b); see 28
U.S.C. § 2255(b) (a hearing is not required on a §
2255 motion if the record of the case conclusively shows that
petitioner is entitled to no relief). An evidentiary hearing
“is required when a movant presents a colorable [ ]
claim showing disputed material facts and a credibility
determination is necessary to resolve the issue.”
United States v. Coon, 205 Fed.Appx. 972, 973 (4th
Cir. 2006) (citing United States v. Witherspoon, 231
F.3d 923, 925-27 (4th Cir. 2000)). However, a hearing is not
required unless the claim shows “disputed facts
involving inconsistencies beyond the record.”
United States v. Robinson, 238 Fed.Appx. 954, 955
(4th Cir. 2007). Conclusory allegations contained within
affidavits do not require a hearing. Strong v.
Johnson, 495 F.3d 134, 139-40 (4th Cir. 2007).
“Thus, no hearing is required if the petitioner's
allegations ‘cannot be accepted as true because they
are contradicted by the record, inherently incredible, or
conclusions rather than statement of fact.' ”
Arredondo v. United States, 178 F.3d 778, 782 (6th
Cir. 1999) (quoting Engelen v. United States, 68
F.3d 238, 240 (8th Cir. 1995)).
motion to vacate alleges ineffective assistance of counsel.
Claims of ineffective assistance of counsel are
constitutional in nature and therefore are properly asserted
under § 2255. The 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