United States District Court, D. South Carolina, Florence Division
Bryan Harwell, United States District Judge
matter is before the Court on Petitioner's motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. See ECF No. 734. The Government
has filed a motion for summary judgment. See ECF No.
744. The Court denies Petitioner's § 2255 motion and
grants the Government's motion for summary judgment for
the reasons herein.
January 4, 2008, Petitioner pled guilty pursuant to a written
plea agreement to one count of conspiracy to distribute and
possess with intent to distribute fifty grams or more of
cocaine base and 500 grams or more of cocaine, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B),
and 846. See ECF Nos. 18, 175, & 189. The
presentence investigation report (“PSR”) prepared
by the U.S. Probation Office determined Petitioner was a
career offender under United States Sentencing Guideline
(“U.S.S.G.”) § 4B1.1 based on his prior South
Carolina convictions for assault and battery of a high and
aggravated nature (“ABHAN”) and distribution of
crack cocaine. See PSR [ECF No. 361].
Petitioner's resulting advisory guideline range was 262
to 327 months' imprisonment. Id. at ¶ 146.
September 17, 2008, the Court adopted the PSR, determined
Petitioner was a career offender, granted the
Government's motion for a downward departure, and
sentenced Petitioner to 188 months' imprisonment,
followed by a term of supervised release of ten years.
See ECF Nos. 332 & 373. Judgment was entered on
September 23, 2008. See ECF No. 373. Petitioner did
not appeal. In September 2010, the Court granted the
Government's motion to reduce Petitioner's sentence
pursuant to Fed. R. Crim. P. 35(b). See ECF Nos.
456, 465, & 476. An amended judgment was entered on
September 24, 2010, reducing Petitioner's 188-month
sentence to 140 months. See ECF No. 478.
April 24, 2016, Petitioner filed the instant § 2255
motion. See ECF No. 734. On May 5, 2016,
the Government filed a response in opposition and a motion
for summary judgment. See ECF Nos. 743 & 744. On
August 1, 2016, Petitioner filed a response in opposition to
the Government's motion for summary judgment.
See ECF No. 761.
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).
the district court denies § 2255 relief without an
evidentiary hearing, the nature of the court's ruling is
akin to a ruling on a motion for summary judgment.”
United States v. Poindexter, 492 F.3d 263, 267 (4th
Cir. 2007). “The court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); see
generally Rule 12 of the Rules Governing Section 2255
Cases (“The Federal Rules of Civil Procedure . . ., to
the extent that they are not inconsistent with any statutory
provisions or these rules, may be applied to a proceeding
under these rules.”). “A party asserting that a
fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in
the record . . .; or (B) showing that the materials cited do
not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence
to support the fact.” Fed.R.Civ.P. 56(c)(1). “The
evidence must be viewed in the light most favorable to the
non-moving party, with all reasonable inferences drawn in
that party's favor. The court therefore cannot weigh the
evidence or make credibility determinations.”
Reyazuddin v. Montgomery Cty., 789 F.3d 407, 413
(4th Cir. 2015) (internal citation and quotation marks
§ 2255 motion and related filings, Petitioner claims he
is entitled to be resentenced in light of Johnson v.
United States, 135 S.Ct. 2551 (2015). See ECF
Nos. 734, 750-1, & 761. He argues Johnson
implicitly invalidated the former residual clause of U.S.S.G.
§ 4B1.2(a) as unconstitutionally vague, and therefore
his prior South Carolina conviction for common law ABHAN
cannot qualify as a crime of violence under that residual
clause. He further contends this conviction is not a crime of
violence under the force clause or the former enumerated
offense clause of § 4B1.2(a).
Court must deny Petitioner's § 2255 motion for
multiple reasons. First, a petitioner generally may not use
28 U.S.C. § 2255 to challenge the calculation of his
advisory guideline range. See United States v.
Foote, 784 F.3d 931, 935-36 (4th Cir. 2015); United
States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999);
United States v. Mikalajunas, 186 F.3d 490, 495-96
(4th Cir. 1999). In Foote, the Fourth Circuit held a
§ 2255 motion that was based on a subsequently-nullified
career offender designation was not a fundamental defect, as
required to challenge a sentence on a motion to vacate.
See 784 F.3d at 940. Under Foote,
Petitioner's claim-that he was improperly designated a
career offender based on a prior offense that is no longer a
crime of violence-is not cognizable on collateral review.
Petitioner has also failed to demonstrate a fundamental
defect or miscarriage of justice.
the Supreme Court in Beckles v. United States
declined to extend Johnson to the Guidelines,
holding “that the advisory Sentencing Guidelines are
not subject to a vagueness challenge under the Due Process
Clause and that § 4B1.2(a)'s residual clause is not
void for vagueness.” 137 S.Ct. at 895. Accordingly,
Petitioner cannot seek relief under Johnson, and his
petition is untimely (as argued in the Government's
response in opposition, see ECF No. 743 at p.
above reasons, the Court will deny Petitioner's §
2255 motion and grant the ...