United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge.
before the Court is Petitioner Archie Larue Evans'
(“Petitioner”) pro se [ECF No. 199]
motion to vacate, set aside, or correct sentence
(“motion to vacate”) pursuant to 28 U.S.C. §
2255. Also pending is Petitioner's [ECF No. 217] motion
for judgment on the pleadings and the government's [ECF
No. 220] motion for summary judgment.
History and Factual Background
was indicted on July 24, 2012, in a fourteen count
indictment. [ECF No. 2]. Counts one through eight alleged
mail fraud in violation of 18 U.S.C. § 1341. Counts nine
through thirteen alleged money laundering in violation of 18
U.S.C. § 1956(a)(1)(A)(i). Count fourteen alleged a
conspiracy to defraud the United States in violation of 18
U.S.C. § 371.
January 9, 2013, Petitioner signed a plea agreement wherein
Petitioner agreed to plead guilty to count eight (mail fraud)
and count fourteen (conspiracy). [ECF No. 40]. Petitioner
entered his guilty plea the same day. [ECF No. 42].
February 6, 2013, Petitioner filed a pro se motion to relieve
counsel, Scott Bellamy, Esq. [ECF No. 44]. The pro se motion
to relieve counsel was also construed as a pro se motion to
withdraw guilty plea. The Court held a hearing on
Petitioner's motion to relieve Bellamy on February 14,
2013, and granted Petitioner's motion to relieve counsel.
The Court then appointed William F. Nettles, IV, Esq.,
Assistant Federal Public Defender, to represent Petitioner.
March 14, 2013, Petitioner, through counsel, filed an amended
motion to withdraw his guilty plea. [ECF No. 53]. The
government filed a response in opposition to Petitioner's
amended motion to withdraw his guilty plea on March 26, 2103.
The Court then set a hearing for April 24, 2013, on
Petitioner's motions to withdraw his guilty plea.
April 23, 2013, the day before the hearing, Petitioner
withdrew his motion to withdraw his guilty plea. [ECF No.
60]. Petitioner filed a declaration stating "[a]fter
consultation with my attorney, I have instructed my attorney
to withdraw my pro se motion to withdraw my guilty
plea as well as the amended motion to withdraw my guilty
plea. I intend to stand by my guilty plea." [ECF No.
22, 2013, Petitioner filed a second motion to relieve
counsel. This time, Petitioner sought to remove William F.
Nettles. [ECF No. 64]. The Court set a hearing for July 1,
2013, on Petitioner's second motion to relieve counsel.
hearing, Petitioner elected to proceed pro se. The
Court granted Petitioner's motion to relieve counsel and
found that Petitioner knowingly and voluntarily waived his
right to counsel. [ECF No. 77]. The Court ordered Mr. Nettles
to serve as standby counsel.
presentence investigation report (“PSR”) dated
March 20, 2013, and revised on November 22, 2013, January 13,
2014, and May 13, 2014, was prepared by the U.S. Probation
Office. With regard to sentencing options, the PSR stated
that Petitioner's maximum statutory sentence on count
eight was 20 years, pursuant to 18 U.S.C. § 1341.
Petitioner's maximum statutory sentence on count fourteen
was 5 years under 18 U.S.C. § 371. Petitioner's
advisory guideline range was 87 to 108 months, based on a
total offense level of 29 and criminal history category of I.
The PSR found that, based on the actual loss suffered by each
victim, restitution in the amount of $3, 779, 389.53 was due
to fourteen victims.
9, 2014, Petitioner was sentenced to 84 months as to count
eight and 60 months as to count fourteen, to run
concurrently. [ECF No. 138]. Petitioner was also placed on
supervised release for 3 years upon his release from prison.
Petitioner was ordered to pay restitution in the amount of
$3, 763, 339.53.
was entered on July 11, 2014. [ECF No. 138].
filed a timely notice of appeal of the final judgment on July
9, 2014. [ECF No. 132]. Petitioner's appellate counsel
filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there were no meritorious
grounds for appeal. Petitioner also filed a pro se
supplemental brief that raised numerous challenges to his
guilty plea and sentence.
Fourth Circuit Court of Appeals affirmed Petitioner's
conviction and sentence in an opinion dated July 8, 2015.
[ECF No. 191]. The mandate and judgment were issued on July
filed the instant motion to vacate pursuant to 28 U.S.C.
§ 2255 on October 12, 2016. The government filed a
response to Petitioner's motion to vacate and a motion
for summary judgment on May 12, 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, among other things, 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
undermine confidence in the outcome. Id. In the
context of a guilty plea, Petitioner must show "that
there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have
insisted on going to trial. Hill v. Lockhart, 474
U.S. 52, 59 (1985).
applying the Strickland test may apply either prong
first and does not need to analyze both prongs of the test if
petitioner makes “an ...