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Wilson v. United States

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

May 9, 2018

Don Emery Wilson, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. Bryan Harwell United States District Judge

         Pending 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.

         Procedural History and Factual Background

         Petitioner 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.

         On June 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. 45].

         A 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.

         On 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.

         Judgment was entered on February 14, 2017. [ECF No. 57].

         Petitioner 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.

         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). 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).

         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).

         In 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)).

         Petitioner's 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 ...


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