United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner's pro se [ECF
No. 1353] motion to vacate pursuant to 28 U.S.C. § 2255.
Petitioner raises the following four grounds in his motion to
vacate: 1) ineffective assistance of counsel with regard to
his guilty plea; 2) conflict of interest arising from a U.S.
Probation Officer's marriage to a Special Agent with the
Bureau of Alcohol, Tobacco, Firearms and Explosives; 3)
ineffective assistance of counsel during sentencing; and 4)
November 14, 2017, the government filed a motion to dismiss
arguing Petitioner's motion to vacate was untimely and
should be dismissed. On November 14, 2017, a
Roseboro Order was issued advising Petitioner that a
motion to dismiss and/or for summary judgment had been filed
and that his failure to respond could result in the dismissal
of his case. See Roseboro v. Garrison, 528 F.2d 309
(4th Cir.1975). Petitioner filed a response in opposition.
[ECF No. 1367]. Petitioner also filed a pro se motion to
disqualify the U.S. Attorney's Office and a pro se motion
to stay the action pending a ruling on the motion to
disqualify. See [ECF Nos. 1362 & 1365].
reasons stated below, the Court grants Respondent's
motion to dismiss, dismisses Petitioner's motion to
vacate, and dismisses this case with prejudice.
September 28, 2010, Petitioner was indicted for his
participation in a conspiracy to possess with intent to
distribute and distribute 50 grams or more of cocaine base
and 500 grams or more of cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846.
September 13, 2011, Petitioner pled guilty, pursuant to a
plea agreement, to conspiracy to possess with intent to
distribute and distribution of 50 grams or more of crack
cocaine and a quantity of cocaine. The presentence
investigation report (“PSR”) prepared by the U.S.
Probation Office determined that Petitioner's advisory
guideline range was 480 months. However, at the sentencing
hearing, the Court found that Petitioner's advisory
guideline range was 292 to 365 months imprisonment based on a
total offense level of 38 and criminal history category III.
Court granted Petitioner a slight variance and sentence
Petitioner to 262 months imprisonment. Pursuant to Amendment
782 to the United States Sentencing Guidelines,
Petitioner's sentence was reduced to 235 months
imprisonment effective November 1, 2015.
timely appealed his conviction and sentence, which was
affirmed by the Fourth Circuit Court of Appeals on August 26,
2013. The Mandate and Judgment were issued on October 2,
2013. Petitioner filed a petitioner for writ of certiorari to
the U.S. Supreme Court, which was denied on February 24,
2014. Rashid v. United States, 134 S.Ct. 1336, 2014
WL 684429 (February 24, 2014).
initiated the instant motion to vacate pursuant to 28 U.S.C.
§ 2255 on October 26, 2017, the date the motion was
delivered to the prison mailroom.
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). “The writ of habeas corpus
and its federal counterpart, 28 U.S.C. § 2255,
‘will not be allowed to do service for an appeal.'
(internal citation omitted) For this reason,
nonconstitutional claims that could have been raised on
appeal, but were not, may not be asserted in collateral
proceedings. (internal citations omitted) Even those
nonconstitutional claims that could not have been asserted on
direct appeal can be raised on collateral review only if the
alleged error constituted ‘a fundamental defect which
inherently results in a complete miscarriage of
justice'”. Stone v. Powell, 428 U.S. 465,
n. 10 (1976); see also United States v. Boyd, No.
02-6242, 2002 WL 1932522, at *1 (4th Cir Aug. 22, 2002)
(“Non-constitutional claims that could have been raised
on direct appeal . . . may not be raised in a collateral
proceeding under § 2255.”).
government argues that Petitioner's motion to vacate is
untimely and must ...