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Rashid v. United States

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

May 23, 2018

Hakim Abdulah Rashid, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. BRYAN HARWELL UNITED STATES DISTRICT JUDGE

         This 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) prosecutorial misconduct.

         On 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].

         For the reasons stated below, the Court grants Respondent's motion to dismiss, dismisses Petitioner's motion to vacate, and dismisses this case with prejudice.[1]

         Procedural History

         On 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.

         On 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.

         The 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.

         Petitioner 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).

         Petitioner 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.

         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). “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.”).

         Discussion

         The government argues that Petitioner's motion to vacate is untimely and must ...


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