United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL, UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner Delbert Garland,
Jr.'s motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. See ECF
No. 57. The Government has filed a motion for summary
judgment. See ECF No. 60. The Court denies
Petitioner's § 2255 motion and grants the
Government's motion for summary judgment for the reasons
February 2013, Petitioner pled guilty (without a plea
agreement) to being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1).
See ECF Nos. 2, 28, & 29. The presentence
investigation report (“PSR”) recommended that
Petitioner receive a base offense level of 20 under U.S.S.G.
§ 2K2.1(a)(4)(A) because he had a prior South Carolina
felony conviction for attempted purse snatching (a violation
of S.C. Code Ann. § 16-13-150). See PSR at
¶¶ 16, 40. Petitioner's total offense level was
25, and based on a criminal history category of IV, his
resulting advisory Guidelines range was 84 to 105 months'
imprisonment. Id. at ¶ 72. In February 2014,
the Court adopted the PSR and sentenced Petitioner to 92
months' imprisonment followed by three years'
supervised release. See ECF Nos. 47, 49, 50, &
52. Judgment was entered on February 26, 2014, see
ECF No. 49, and Petitioner did not file a direct appeal.
15, 2016, Petitioner (represented by counsel) filed the
instant § 2255 motion. See ECF No. 57. The
Government filed a response in opposition and a motion for
summary judgment. See ECF Nos. 59 & 60.
Petitioner filed a response in opposition to the
Government's motion for summary judgment. See
ECF No. 62.
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
claims he is entitled to be resentenced in light of
Johnson v. United States, 135 S.Ct. 2551 (2015),
arguing his prior conviction for attempted purse snatching no
longer qualifies as a crime of violence for purposes of the
Sentencing Guidelines and therefore his base offense level
would have been 14 instead of 20 (which would have resulted
in a lower advisory Guidelines range). See ECF
Nos. 57 & 62.
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).
the Supreme Court in Beckles v. United
States-decided after Petitioner filed his § 2255
motion-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. 886, 895 (2017).
Accordingly, Petitioner cannot seek relief under
Johnson. See, e.g., United States v.
Hill, 717 Fed.Appx. 273, 274 (4th Cir. 2018) (holding
Beckles precluded the defendant from seeking relief
under Johnson for an enhanced base offense level
calculated under U.S.S.G. § 2K2.1(a)(4)(A)).
as the Government argues, Petitioner's § 2255 motion
is untimely. Section 2255 motions are subject to a one-year
statute of limitations, which begins running from the latest
of, inter alia, “(1) the date on which the
judgment of conviction becomes final” or, at issue
here, “(3) the date on which the right asserted was
initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review.” 18 U.S.C. § 2255(f). As indicated above,
Johnson is inapplicable, and therefore the statute
of limitations began running the date that Petitioner's
judgment of conviction became final. “Where, as here, a
defendant does not pursue a direct appeal, the conviction
becomes final when the time expires for filing a direct
appeal.” United States v. Walker, 194 F.3d
1307, 1999 WL 760237, at *1 (4th Cir. 1999) (unpublished
table decision) (citing Adams v. United States, 173
F.3d 1339, 1342 n.2 (11th Cir. 1999), and Kapral v.
United States, 166 F.3d 565, 575 (3d Cir. 1999)). A
criminal defendant must file a notice of appeal within
fourteen days after the entry of judgment. Fed. R. App. P.
4(b)(1)(A)(i). Petitioner did not file a direct appeal, so
his judgment of conviction became final on March 12, 2014,
which was fourteen days after judgment was entered.
Petitioner filed his instant § 2255 motion over two
years later in June 2016, and therefore it is
above reasons, the Court will deny Petitioner's §
2255 motion and grant the ...