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. 821] motion to vacate pursuant to 28 U.S.C. § 2255.
Petitioner alleges ineffective assistance of counsel with
regard to his plea agreement. Petitioner argues he received a
longer sentence than he should have as a result of his
attorney's alleged ineffectiveness.
10, 2017, the government filed a motion for summary judgment
arguing that Petitioner's motion is untimely. On July 10,
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 pro se response to the government's motion. For the
reasons stated below, the Court grants Respondent's
motion for summary judgment, dismisses Petitioner's
motion to vacate, and dismisses this case with
17, 2014, Petitioner pled guilty, pursuant to a Rule
11(c)(1)(C) plea agreement, to conspiracy to possess with
intent to distribute and distribution of 5 kilograms or more
of cocaine and 280 grams or more of crack cocaine in
violation of 21 U.S.C. § 846. The Rule 11(c)(1)(C) plea
agreement provided for a stipulated sentence of 140 months
imprisonment. The presentence investigation report
(“PSR”) prepared by the U.S. Probation Office
determined that Petitioner's sentencing guideline range
was 262 to 327 months in prison based on a total offense
level of 34 and criminal history category of VI.
November 18, 2014, the Court accepted the Rule 11(c)(1)(C)
plea agreement and sentenced Petitioner to 140 months
imprisonment. The judgment was entered on November 19, 2014.
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 3, 2014, 14 days after
the judgment was entered.
filed the instant motion to vacate pursuant to 28 U.S.C.
§ 2255 on June 22, 2017, 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. The Court agrees.
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
of limitation begins to run from the latest of the following
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from ...