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Phillips v. United States

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

June 26, 2018

Omar Phillips, 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 motion to vacate pursuant to 28 U.S.C. § 2255 filed on June 1');">10, 201');">15. [ECF #71');">1]. Petitioner moves to vacate his sentence arguing that he received ineffective assistance of counsel in entering a plea of guilty to conspiracy to distribute 28 grams or more of cocaine base and 500 grams or more of cocaine. [ECF #71');">1].

         On September 28, 201');">15, Respondent filed a motion for summary judgment [ECF #83] arguing summary judgment should be entered on behalf of the government because Petitioner's counsel was not ineffective, nor did any actions on the part of Petitioner's counsel result in prejudice to Petitioner. On September 29, 201');">15, 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, 28 F.2d 309');">528 F.2d 309 (4th Cir.1');">1975). Petitioner filed a response to the government's motion on November 4, 201');">15. [ECF #91');">1]. Petitioner also filed an amendment to his motion to vacate pursuant to Federal Rule of Civil Procedure 1');">15 on May 1');">1, 201');">17. [ECF #93-1');">1]. 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 prejudice.[1');">1" name="FN1');">1" id= "FN1');">1">1');">1]

         Procedural History

         On or about April 23, 201');">13, Petitioner was indicted on three counts: (1');">1) conspiracy to possess with intent to distribute and distribution of 280 grams or more of cocaine base (commonly known as “crack” cocaine), and 500 grams or more of cocaine in violation of in violation of 21');">1 U.S.C. §§ 841');">1(a)(1');">1), 841');">1(b)(1');">1)(A) and 841');">1(b)(1');">1)(B); all in violation of 21');">1 U.S.C. §846; (2) possession with intent to distribute and distribution of “crack” cocaine in violation of 21');">1 U.S.C. §§ 841');">1(a)(1');">1) and 841');">1(b)(1');">1)(C); and (3) possession with intent to distribute and distribution of “crack” cocaine in violation of 21');">1 U.S.C. §§ 841');">1(a)(1');">1) and 841');">1(b)(1');">1)(C). [ECF #2]. On August 23, 201');">13, Petitioner, represented by counsel, pled guilty to Count I of a single lesser-included conspiracy charge to distribute 28 grams or more of cocaine base and 500 grams or more of cocaine pursuant to a Rule 1');">11');">1(c)(1');">1)(C) plea agreement, resulting in a stipulated sentence of 1');">188 months. [ECF #1');">1, p. 4]. Included within the plea agreement was a waiver of Petitioner's right to contest the conviction by either direct appeal or other post-conviction action, with the exception of an ineffective assistance of counsel claim. [ECF #31');">1, p. 5');">p. 5]. During the guilty plea hearing, Petitioner agreed, under oath, to the following: (1');">1) he was satisfied with the manner in which his lawyer advised and represented him; (2) he had talked with his lawyer for as often and for as long as he felt necessary for the attorney to represent him; (3) he understood the conversations he had with his lawyer; (4) he did not need additional time to speak with his lawyer; (5) his lawyer had done everything for him that Petitioner felt should have or could have been done; (6) his lawyer had not failed to do anything that Petitioner asked the lawyer to do; (7) he was satisfied with his lawyer's services; and (8) he had no complaint to bring before the Court regarding his lawyer. [ECF #59, pp. 1');">18-22]. The U.S. Probation Office prepared a presentence investigation report (“PSR”). The PSR identified Petitioner as a career offender pursuant to USSG § 4B1');">1.1');">1. However, his offense level was determined by the drug weights, possession of a firearm during the offense, and a role enhancement adjustment, causing his adjusted offense level to be 36.[2" name="FN2" id="FN2">2] Petitioner's initial advisory guideline range was 235 to 293 months, based upon his plea agreement regarding conspiracy to possess with intent to distribute 28 grams or more of cocaine base, a lesser included offense of Count I. At sentencing, the government agreed to change the PSR based on an objection by Petitioner as to the applicability of the leadership role enhancement adjustment, resulting in a revised advisory guideline range of 1');">188 to 235 months. The Court sentenced Petitioner to the stipulated 1');">11');">1(c)(1');">1)(C) sentence of 1');">188 months imprisonment. [ECF #45].

         On February 21');">1, 201');">14, Petitioner timely filed a notice of appeal. [ECF #49]. On September 29, 201');">14, the Fourth Circuit Court of Appeals affirmed Petitioner's conviction and dismissed the appeal. [ECF #67]. Petitioner filed the instant motion to vacate pursuant to 28 U.S.C. § 2255 on June 1');">10, 201');">15. [ECF #71');">1]. Respondent filed a motion for summary judgment on September 28, 201');">15. [ECF #83]. Petitioner responded to the motion on November 4, 201');">15. [ECF #91');">1]. Petitioner also filed a pro se motion to amend his motion on May 1');">1, 201');">17. [ECF #93].

         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');">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, 28 U.S. 465');">428 U.S. 465, n. 1');">10 (1');">1976); see also United States v. Boyd, No. 02-6242, 2002 WL 1');">1932522, at *1');">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.”).

         Legal Standard for Summary Judgment

         Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.p. 5');">p. 56(c)(2) (2009). The movant has the burden of proving that summary judgment is appropriate. Once the movant makes the showing, however, the opposing party must respond to the motion with "specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2).

         When no genuine issue of any material fact exists, summary judgment is appropriate. See Shealy v. Winston, 929 F.2d 1');">1009, 1');">101');">11');">1 (4th Cir. 1');">1991');">1). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Id. However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 242');">477 U.S. 242, 247-48 (1');">1986).

         "[O]nce the moving party has met [its] burden, the nonmoving party must come forward with some evidence beyond the mere allegations contained in the pleadings to show that there is a genuine issue for trial." Baber v. Hospital Corp. of Am., 2d 872');">977 F.2d 872, 874-75 (4th Cir. 1');">1992). The nonmoving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. See Id. Rather, the nonmoving party is required to submit evidence of specific facts by way of affidavits, depositions, interrogatories, or admissions to demonstrate the existence of a genuine and material factual issue for trial. Celotex Corp., 477 U.S. at 322.

         Discussion

         I. Motion to ...


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