United States District Court, D. South Carolina, Florence Division
Bryan Harwell, United States District Judge.
matter is before the Court on Petitioner Melvin Pernell
Gause's pro se motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255. See
ECF No. 76. The Government has filed a motion to dismiss.
See ECF No. 80. The Court denies Petitioner's
§ 2255 motion and grants the Government's motion to
dismiss for the reasons herein.
September 2015, Petitioner pled guilty pursuant to a written
plea agreement to being a felon in possession of a firearm
and ammunition, in violation of 18 U.S.C. §§
922(g)(1), 924(a)(2), and 924(e). See ECF Nos. 2,
45, 46, & 47. The presentence investigation report
(“PSR”) recommended that the Court sentence
Petitioner as an armed career criminal pursuant to the Armed
Career Criminal Act (“ACCA”) because Petitioner
had at least three prior state drug convictions qualifying as
serious drug offenses. See ECF No. 67. Specifically,
the PSR identified Petitioner's prior South Carolina drug
convictions for (1) distribution of crack cocaine (first
offense), (2) distribution of marijuana (second offense), (3)
possession with intent to distribute cocaine (second
offense), and (4) distribution of marijuana (second offense)
and possession with intent to distribute (second offense).
See PSR at ¶¶ 17, 20-22, & 46.
February 2016, the Court adopted the PSR and sentenced
Petitioner under the ACCA to 180 months' imprisonment and
five years' supervised release. See ECF Nos. 62,
64, 65, & 67. Judgment was entered on February 26, 2016,
see ECF No. 64, and Petitioner did not file a direct
February 23, 2017,  Petitioner filed the instant § 2255
motion and a supporting memorandum. See ECF No. 76.
On March 3, 2017, the Government filed a motion to dismiss.
See ECF No. 80. On March 21, 2017,  Petitioner filed
a response in opposition to the Government's motion.
See ECF No. 83.
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).
argues he is entitled to relief pursuant to the Supreme
Court's decision in Mathis v. United States, 136
S.Ct. 2243 (2016),  “[o]n the ground that the
‘distribution' element of [his] crime of conviction
is broader than the elements of a ‘serious drug
offense' under the [ACCA].” See ECF No.
76-1 at p. 1. The Government argues Mathis is
inapplicable to Petitioner's case. See ECF No.
ACCA enhances the sentence of a defendant convicted of being
a felon in possession of a firearm or ammunition if he has
three prior, distinct convictions “for a violent felony
or a serious drug offense, or both,
committed on occasions different from one another.” 18
U.S.C. § 924(e)(1) (emphasis added). In Mathis,
the Supreme Court reaffirmed the approach by which courts
should determine if a prior conviction is one of the
enumerated violent felonies set
forth in 18 U.S.C. § 924(e)(2)(B)(ii) for purposes of
the ACCA. See 136 S.Ct. at 2247-48.
did NOT deal with serious drug
offenses and does not afford Petitioner relief.
Petitioner's enhanced sentence under the ACCA was based
on his prior serious drug offenses, namely those prior South
Carolina drug convictions listed above. See PSR at
¶¶ 17, 20-22, & 46. His sentence enhancement
was not based on three prior
violent felonies. See, e.g., Washington v.
United States, 2017 WL 3605231, at *3 (D.S.C. Aug. 18,
2017) (“[T]he holding in Mathis does not apply
because Movant received an enhanced sentence based on his
prior controlled substance convictions, and not because of
any conviction considered to be a violent felony under the
ACCA.”), appeal dismissed, 710 Fed.Appx. 161
(4th Cir. 2018), cert. denied, 2018 WL 2303739 (U.S.
June 18, 2018); United States v. Brunson, 2017 WL
1250996, at *2 (E.D. Va. Apr. 3, 2017) (same), appeal
dismissed, 697 Fed.Appx. 143 (4th Cir. 2017). The Court
will deny Petitioner's § 2255 motion and grant the
Government's motion to dismiss.