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Graves v. United States

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

June 11, 2018

John Wesley Graves, 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. 291] motion to vacate pursuant to 28 U.S.C. § 2255. Petitioner argues that his counsel was ineffective for failing to advise him that, under the terms of his plea agreement, a change in the law would not modify his sentence. Petitioner originally filed this matter as a petition for writ of habeas corpus under 28 U.S.C. § 2241 and the matter was assigned to Chief Judge Terry L. Wooten. In an order dated January 12, 2017, the Court re-characterized Petitioner's § 2241 petition as a motion to vacate under 28 U.S.C. § 2255.

         On January 17, 2017, the government filed a response and motion to dismiss arguing that Petitioner's motion is untimely. 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 July 9, 2013, Petitioner pled guilty, pursuant to a Rule 11(c)(1)(C) plea agreement, to conspiracy to possess with intent to distribute 50 grams of methamphetamine and 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 846. The Rule 11(c)(1)(C) plea agreement provided for a stipulated sentence of 10 years or 120 months incarceration. The presentence investigation report (“PSR”) prepared by the U.S. Probation Office determined that Petitioner's advisory sentencing guideline range was 135 to 168 months in prison based on a total offense level of 33 and criminal history category of I.

         On November 14, 2013, the Court held a sentencing hearing. The Court accepted the parties' Rule 11(c)(1)(C) plea agreement and granted a downward departure motion by the government. Petitioner was sentenced to a 78 month term of imprisonment. The judgment was entered on November 18, 2013.

         Petitioner did not appeal his conviction or sentence. The deadline for Petitioner to file a notice of appeal from his conviction and sentence was December 2, 2013, 14 days after the judgment was entered.

         The instant motion to vacate was filed on November 22, 2016, the date Petitioner delivered his motion to the prison mail room.

         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 be dismissed. Having reviewed the record, the Court agrees with the government that Petitioner's motion to vacate is untimely.

         The enactment of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) amended § 2255 by imposing a one-year statute of limitations period for the filing of any motion under this Section. Accordingly, the one-year period ...


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