United States District Court, D. South Carolina, Greenville Division
ORDER AND OPINION
matter is before the court on Petitioner's Motion to
Vacate under 28 U.S.C. § 2255. (ECF No. 176.) Petitioner
seeks relief from his sentence under United States v.
Johnson, 135 S.Ct. 2551 (2015). (See ECF No.
176-1 at 7.) For the reasons stated below, the court
DENIES Petitioner's Motion to Vacate
under 28 U.S.C. § 2255 (ECF No. 176).
FACTUAL AND PROCEDURAL BACKGROUND
2010, Petitioner was indicted for distribution of crack
cocaine, being a felon in possession of a firearm, and using
and carrying a firearm in furtherance of a drug trafficking
crime. (ECF No. 2.) On February 22, 2011, Petitioner and the
Government entered into a plea agreement whereby Petitioner
agreed to plead guilty to the charges of distribution of
crack cocaine and being a felon in possession of a firearm.
(ECF No. 35.) A Presentence Investigation Report
(“PSR”) was prepared by the U.S. Probation
Office. (ECF No. 64.) The PSR determined that Petitioner was
an armed career criminal based on two (2) prior convictions
for distribution of crack cocaine and one (1) prior
conviction for carjacking. (ECF No. 64 at ¶¶ 21,
27, 28, 52). On June 2, 2011, the court sentenced Petitioner
to 188 months of incarceration. (ECF No. 82.) Petitioner
filed an appeal which resulted in a remand for resentencing
in order to allow Petitioner an opportunity to allocute. (ECF
Nos. 92, 109, 112.) On October 9, 2012, Petitioner was
resentenced (ECF No. 153) and his original sentence did not
change (ECF No. 154). Petitioner appealed his sentence, and
his sentence was affirmed by the United States Court of
Appeals for the Fourth Circuit. (ECF No. 157, 169.)
January 7, 2016, Petitioner filed a pro se Motion to
Vacate under 28 U.S.C. § 2255. (ECF No. 176.) The
Government responded (ECF No. 185), and Petitioner replied
(ECF No. 197). On September 16, 2016, an amended Presentence
Investigation Report was filed. (ECF No. 208.)
February 17, 2016, the Government filed a Motion for Summary
Judgment on Petitioner's 28 U.S.C. § 2255 claim.
(ECF No. 186.) Petitioner responded in opposition on March
24, 2016. (ECF No. 193.)
order to move for relief under 28 U.S.C. § 2255,
Petitioner must plead that he was sentenced “(1) in
violation of the Constitution or laws of the United States,
(2) the court was without jurisdiction to impose such
sentence, (3) that the sentence was in excess of the maximum
authorized by law, or (4) that his sentence is otherwise
subject to collateral attack.” 28 U.S.C. §
to 28 U.S.C. § 2255(f), a petitioner has one year from
the time his or her conviction becomes final to file a motion
under this section, or one year from “the date on which
the right asserted was initially recognized by the United
States Supreme Court, if that right has been newly recognized
by the Supreme Court and made retroactively applicable to
cases on collateral review.” See 28 U.S.C.
§ 2255(f)(1), (3).
Petitioner is a pro se litigant, the court is
required to liberally construe his arguments. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also
Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro
se plaintiff's “inartful pleadings” may
be sufficient enough to provide the opportunity to offer
asserts that his sentence is in excess of the maximum
authorized by law because he does not fall under the Armed
Career Criminal Act (“ACCA”) given the Supreme
Court's holding in Johnson. In Johnson v.
United States, the United States Supreme Court held that
the residual clause of the ACCA was unconstitutionally vague
in violation of the Due Process Clause of the Fifth Amendment
to the United States Constitution. 135 S.Ct. at 2563. The
residual clause defines a violent felony as “[crimes
that involve] conduct that presents a serious potential risk
of physical injury to another.” 18 U.S.C.
§924(e)(2)(B). Johnson was decided on June 26,
2015, and presented a new right for defendants sentenced to
the mandatory minimum sentence of fifteen (15) years based on
the residual clause of the statutory definition of violent
felony. In Welch v. United States, the Supreme Court
held that Johnson had a retroactive effect in cases
on collateral review. 136 S.Ct. 1257, 1268 (2016).
Johnson, the Supreme Court only ruled as to the
ambiguity of the residual clause within the statutory
definition of violent felony under 18 U.S.C. §
924(e)(2)(B)(ii). Johnson, 135 S.Ct. at 2563. The
Supreme Court did not address the statutory definition of
“serious drug offense” or call into question any
other part of the statutory definition of violent felony.
three predicate convictions were two (2) drug offenses and
one (1) state carjacking conviction. Petitioner's two
prior drug convictions qualify as “serious drug
offenses;”however, Petitioner posits that his
carjacking conviction does not qualify as a “violent
South Carolina's Crime of Carjacking Qualifies ...