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Capers v. United States

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

July 13, 2018

Demetrius Lashawn Capers, Petitioner,
United States of America, Respondent.


          R. Bryan Harwell, United States District Judge

         This 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.[1]


         On 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[2] 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.

         On 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.

         On April 24, 2016, Petitioner filed the instant § 2255 motion.[3] 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.

         Legal Standard

         Prisoners 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).

         “When 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 omitted).


         In his § 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)[4] 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).[5]

         The 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.

         Second, 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. 1).[6]

         For the above reasons, the Court will deny Petitioner's § 2255 motion and grant the ...

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