United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL, UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner Sylvester Tom
Ceasar's motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. See ECF
No. 53. The Government has filed a motion to dismiss.
See ECF No. 65. The Court denies Petitioner's
§ 2255 motion and grants the Government's motion to
dismiss for the reasons herein.
2006, Petitioner pled guilty to possessing firearms and
ammunition as a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), and 924(e). See
ECF Nos. 24, 27, & 28. Petitioner's presentence
investigation report (“PSR”) showed he had (1) a
1993 North Carolina conviction for assault with a deadly
weapon with intent to kill inflicting serious injury
(“AWDWIKISI”), (2) a 1983 South Carolina
conviction for discharging a firearm into a dwelling, (3)
1984 and 1985 South Carolina convictions for failure to stop
for a police vehicle/blue light, (4) a 1985 South Carolina
conviction for voluntary manslaughter, (5) a 1985 South
Carolina conviction for common law assault and battery with
intent to kill (“ABIK”), and (6) a 1998 South
Carolina conviction for common law assault and battery of a
high and aggravated nature (“ABHAN”).
See ECF No. 46 at ¶¶ 22, 24-28. Based on
these prior convictions, the Court sentenced Petitioner
pursuant to the Armed Career Criminal Act
(“ACCA”) to 300 months' imprisonment and five
years' supervised release. See ECF Nos. 45, 47,
& 50. Judgment was entered on August 20, 2007,
see ECF No. 47, and Petitioner did not file a direct
April 7, 2016, Petitioner (represented by counsel) filed the
instant § 2255 motion. See ECF No. 53. On June
5, 2017,  the Government filed a response in
opposition and a motion to dismiss. See ECF No. 65.
On June 13, 2017, Petitioner filed a response in opposition
to the Government's motion to dismiss. See ECF
in federal custody may attack the validity of their sentences
pursuant to 28 U.S.C. § 2255. For a court to vacate, set
aside, or correct a sentence under § 2255, a petitioner
must prove 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
district court need not hold an evidentiary hearing on a
§ 2255 motion if “the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b);
see United States v. Thomas, 627 F.3d 534, 538 (4th
Cir. 2010). The determination of whether to hold an
evidentiary hearing ordinarily is left to the sound
discretion of the district court. Raines v. United
States, 423 F.2d 526, 530 (4th Cir. 1970).
writ of habeas corpus and its federal counterpart, 28 U.S.C.
§ 2255, will not be allowed to do service for an appeal.
For this reason, nonconstitutional claims that could have
been raised on appeal, but were not, may not be asserted in
collateral proceedings.” Stone v. Powell, 428
U.S. 465, 478 n.10 (1976) (internal quotation marks and
citation 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[.]” Id.
(internal quotation marks omitted).
asserts he is entitled to be resentenced pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015).
See ECF No. 53 at p. 4. Specifically, he argues his
prior North Carolina and South Carolina convictions listed
above no longer qualify as ACCA predicates in light of
Johnson. See ECF No. 53-1. The Government
contends Petitioner has at least three prior convictions that
qualify as violent felonies under the ACCA's force
clause. See ECF No. 65.
ACCA applies to violators of 18 U.S.C. § 922(g) who have
at least three previous convictions for violent felonies or
serious drug offenses committed on occasions different from
one another. 18 U.S.C. § 924(e)(1). In Johnson,
the Supreme Court struck down as unconstitutionally vague the
ACCA's residual clause, 18 U.S.C. §
924(e)(2)(B)(ii), which defined “violent felony”
to include a crime that “involves conduct that presents
a serious potential risk of physical injury to
another.” 135 S.Ct. at 2555-56, 2561-63. Following
Johnson, an offense is a violent felony only if it
“has as an element the use, attempted use, or
threatened use of physical force against the person of
another” (the “force clause”) or “is
burglary, arson, or extortion, [or] involves use of
explosives” (the “enumerated offense
clause”). 18 U.S.C. § 924(e)(2)(B).
indicated above, Petitioner was sentenced under the ACCA
based upon the following convictions: (1) North Carolina
AWDWIKISI, (2) South Carolina discharging a firearm into a
dwelling, (3) South Carolina failure to stop for a police
vehicle/blue light (two offenses), (4) South Carolina
voluntary manslaughter, (5) South Carolina common law ABIK,
and (6) South Carolina common law ABHAN. After
Johnson, however, Petitioner's prior South
Carolina convictions for discharging a firearm into a
dwelling, failure to stop for a police vehicle, and ABHAN no
longer qualify as ACCA predicates because they do not fall
within the force clause, the enumerated offense clause, or
the now-void residual clause. See United States v.
Hemingway, 734 F.3d 323, 338 (4th Cir. 2013) (holding
South Carolina common law “ABHAN is not categorically
an ACCA violent felony”); United States v.
Rivers, 595 F.3d 558, 565 (4th Cir. 2010) (holding South
Carolina failure to stop for a blue light “does not
qualify as a predicate offense for purposes of the
ACCA”); Roberts v. United States, No.
2:04-CR-295-PMD, 2017 WL 445538, at *2-3 (D.S.C. Feb. 2,
2017) (holding South Carolina discharging a firearm into a
dwelling does not qualify as an ACCA predicate in light of
United States v. Parral-Dominguez, 794 F.3d 440 (4th
Cir. 2015), which addressed a similar North Carolina law).
as the Government correctly argues, Petitioner's
remaining three prior convictions-North Carolina AWDWIKISI,
South Carolina voluntary manslaughter, and South Carolina
common law ABIK-do qualify as ACCA
predicates. The Fourth Circuit has specifically held
that North Carolina AWDWIKISI and South Carolina common law
ABIK are categorically violent felonies under the ACCA's
force clause. See United States v. Townsend, 886
F.3d 441, 448 (4th Cir. 2018) (North Carolina AWDWIKISI);
United States v. Dinkins, 714 Fed.Appx. 240, 244
(4th Cir. 2017) (South Carolina common law ABIK). Moreover,
this Court has specifically held that South Carolina
voluntary manslaughter is categorically a violent felony
under the ACCA's force clause. See White v. United
States, No. 4:11-cr-02164-RBH, 2017 WL 4410253 (D.S.C.
Oct. 4, 2017); see also Williams v. United States,
No. 3:13-cr-01039-MBS, 2018 WL 806659 (D.S.C. Feb. 9, 2018)
(citing White).Thus, Petitioner is not entitled to
relief under Johnson because he has at least three
prior convictions for violent felonies supporting his ACCA
enhancement. The Court will deny his § 2255 motion.