United States District Court, D. South Carolina, Greenville Division
ORDER AND OPINION
matter is before the court pursuant to Petitioner's
Motion to Vacate pursuant to 28 U.S.C. § 2255. (ECF No.
819.) For the reasons stated below, the court DENIES
Petitioner's Motion to Vacate (ECF No. 819).
FACTUAL AND PROCEDURAL BACKGROUND
March 4, 2005, Petitioner pleaded guilty to several crimes
regarding his involvement in two robberies in South Carolina,
and was sentenced to 300 months in prison. (ECF Nos. 179,
220.) Petitioner has filed several Motions to Vacate pursuant
to 28 U.S.C. § 2255. (ECF Nos. 325, 362, 422, 542, 577.)
On May 7, 2012, Petitioner was enjoined from “filing
further frivolous, vexatious, and repetitive claims and
motions relating to the validity of his 2005 conviction,
including future 28 U.S.C. §§ 2255 and 2241
claims[, ]” in accordance with Graham v.
Riddle, 554 F.2d 133 (4th Cir. 1977). (ECF No. 649 at
6.) On March 27, 2017, Petitioner filed another Motion to
Vacate pursuant to 28 U.S.C. § 2255. (ECF No. 819.) On
May 11, 2017, Respondent responded (ECF No. 826) and filed a
Motion to Dismiss (ECF No. 827).
prisoner in federal custody under sentence of a federal court
may petition the court that imposed the sentence to vacate,
set aside, or correct the sentence. 28 U.S.C. § 2255.
The prisoner is entitled to relief if “(1) the sentence
was imposed in violation of the Constitution or laws of the
United States; (2) the court was without jurisdiction to
impose such sentence; (3) the sentence was in excess of the
maximum authorized by law; or (4) the sentence is otherwise
subject to collateral attack.” Id. A motion
made pursuant to 28 U.S.C. § 2255 requires a showing of
either a constitutional or jurisdictional error or a
“fundamental defect” resulting in a
“complete miscarriage of justice.” Davis v.
United States, 417 U.S. 333, 346 (1974); Hill v.
United States, 368 U.S. 424, 428 (1962). A petitioner
collaterally attacking his sentence or conviction pursuant to
§ 2255 bears the burden of proving his grounds for
collateral attack by a preponderance of the evidence.
White v. United States, 352 F.Supp.2d 684, 686 (E.D.
Va. 2004) (citing Miller v. United States, 261 F.2d
546 (4th Cir. 1958)). In ruling on a § 2255 motion, the
court may dismiss the motion without a hearing where it
conclusively shows from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief. See 28 U.S.C. § 2255(b)
(noting that a hearing is not required on a § 2255
motion if the record of the case conclusively shows that
petitioner is entitled to no relief).
to 28 U.S.C. § 2555(f)(4), a petitioner has one year to
file his or her claim from “the date on which the facts
supporting the claim or claims presented could have been
discovered through the exercise of due diligence.”
petitioner is able to file a second or successive motion to
vacate, but it must be certified by the appropriate United
States Court of Appeals and contain new evidence that would
“be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the
movant guilty of the offense” or “a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h). Pursuant to
United States v. Hairston, “. . . a
numerically second § 2255 motion should not be
considered second or successive pursuant to § 2255(h)
where, [ ] the facts relied on by the movant seeking
resentencing did not exist when the numerically first motion
was filed and adjudicated.” 754 F.3d 258, 262 (4th Cir.
filed the instant Motion to Vacate (ECF No. 819) based on the
United States Government's alleged breach of his plea
agreement (ECF No. 175). Petitioner asserts that on August 3,
2016, the United States Court of Appeals for the Fifth
Circuit used Petitioner's immunized statements to deny
him relief under Rosemond v. United States, 134
S.Ct. 1240 (2014)which violated his plea agreement pursuant
to Kastigar v. United States, 406 U.S. 441, 442
(1972). (ECF No. 819-1 at 6, 11.) Petitioner filed
his instant Motion to Vacate (ECF No. 819) on March 27, 2017,
therefore his Motion is timely because he filed it within one
year of the alleged breach of his plea agreement.
Additionally, Petitioner's Motion (ECF No. 819) is not
successive, but is numerically second because the facts
relied on by Petitioner in bringing his claim did not exist
when he filed his first motion to vacate in 2008.
(See ECF No. 325); see also Hairston, 754
F.3d at 262. Because Petitioner's Motion is not
successive, Petitioner was not required to obtain a
certificate of appealability from the United States Court of
Appeals for the Fourth Circuit.
basis of Petitioner's Motion is that the Fifth Circuit
used immunized statements to deny him relief under
Rosemond. (ECF No. 819-1 at 5.) However, the court
finds that the Fifth Circuit's use of Petitioner's
statements did not violate his plea agreement.
Petitioner's Plea Agreement contains a provision in which
the parties agree “. . . that any self-incriminating
information provided by the Defendant [ ] as a result of the
cooperation required by the terms of this agreement, although
available to the court will not be used against Defendant [ ]
in determining the Defendant's applicable guideline range
for sentencing pursuant to the U.S. Sentencing Commission
Guidelines.” (ECF No. 175 at 3.) The Fifth Circuit did
not determine Petitioner's guideline range for the crimes
to which Petitioner pleaded guilty, therefore, there was no
violation of Petitioner's plea agreement.
there is no Kastigar issue in this case, as noted by
the court's previous order denying Petitioner's
Motions for Reconsideration (ECF Nos. 846, 850) of the
court's Orders (ECF Nos. 836, 842) finding that
Petitioner's claims were repetitive and related only to
the validity of his conviction. (ECF No. 853 at 5-6.)
Petitioner's statements were not compelled by the
Government, therefore, because Petitioner voluntarily
cooperated with the government, Kastigar does not
apply to Petitioner. See United States v. McHan, 101
F.3d 1027, 1036 (4th Cir. 1996) (“Whether the oral
use-immunity agreement at issue in this case is subject to
the full Kastigar protections is doubtful because
McHan voluntarily cooperated with the government.”).
reasons stated above, the court DENIES WITH PREJUDICE
Petitioner's Motion to Vacate (ECF No. 819). Further, the
court GRANTS Petitioner's Motion for an Expedited Ruling
on his Motion to Vacate (ECF No. 819) and Petitioner's
Fourth Motion for Judicial Ruling on his Motion to Vacate
(ECF No. 819). (ECF Nos. 838, 873.) The court also DENIES AS
MOOT the Government's Motion to Dismiss (ECF No. 827).
Additionally, the court DENIES WITH PREJUDICE
Petitioner's Motion for Summary Judgment (ECF No. 832),
Petitioner's Motion for Reconsideration (ECF No. 856),
Petitioner's Motion for an Evidentiary and/or
Kastigar Hearing (ECF No. 859), Petitioner's
Motion to Be Notified Why Petitioner is Being Denied Equal
Protection Under Kastigar (ECF No. 863), and
Petitioner's Motion to Grant [his] Motion to Vacate or to
Be Released on Bond (ECF No. 867).