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. 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.
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
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.
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.
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
instant motion to vacate was filed on November 22, 2016, the
date Petitioner delivered his motion to the prison mail room.
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 be dismissed. Having reviewed the record,
the Court agrees with the government that Petitioner's
motion to vacate is untimely.
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