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. 58. The Government
has filed a motion for summary judgment. See ECF No.
63. The Court denies Petitioner's § 2255 motion and
grants the Government's motion for summary judgment for
the reasons herein.
February 2015, Petitioner pled guilty (without a plea
agreement) to being a felon in possession of firearms and
ammunition, in violation of 18 U.S.C. § 922(g)(1).
See ECF Nos. 2, 41, & 42. The presentence
investigation report (“PSR”) recommended that
Petitioner receive a base offense level of 24 under U.S.S.G.
§ 2K2.1(a)(2) because he had two prior South Carolina
felony convictions for strong arm/common law robbery.
See PSR at ¶¶ 17, 19, & 33.
Petitioner's total offense level was 25, and based on a
criminal history category of III, his resulting advisory
Guidelines range was 70 to 87 months' imprisonment.
Id. at ¶ 72. In July 2015, the Court adopted
the PSR and sentenced Petitioner to 70 months'
imprisonment followed by three years' supervised release.
See ECF Nos. 48, 50, & 53. Judgment was entered
on July 9, 2015, see ECF No. 50, and Petitioner did
not file a direct appeal.
20, 2016, Petitioner (represented by counsel) filed the
instant § 2255 motion. See ECF No. 58. The
Government filed a response in opposition and a motion for
summary judgment. See ECF Nos. 62 & 63.
Petitioner filed a response in opposition to the
Government's motion for summary judgment. See
ECF No. 65.
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 convictions for strong arm/common law
robbery no longer qualify as crimes of violence for purposes
of the Sentencing Guidelines and therefore his base offense
level would have been 13 instead of 24 (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). In any event, after Petitioner filed his
§ 2255 motion, the Fourth Circuit held South Carolina
strong arm/common law robbery is a violent felony for
purposes of the Armed Career Criminal Act
(“ACCA”), see United States v. Doctor,
842 F.3d 306, 307 (4th Cir. 2016), and decisions evaluating
whether an offense qualifies as a violent felony under the
ACCA are dispositive of whether the offense also qualifies as
a crime of violence under the Guidelines. United States
v. Montes-Flores, 736 F.3d 357, 363 (4th Cir. 2013);
see, e.g., United States v. Simmons, 708
Fed.Appx. 114, 114 (4th Cir. 2018) (finding that under
Doctor, the defendant's strong arm robbery
conviction qualified as a crime of violence under U.S.S.G.
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.
Baker, 682 Fed.Appx. 223, 225 (4th Cir. 2017) (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)(2)).
the Court notes Petitioner alleges his plea counsel was
ineffective for failing to object that his prior strong
arm/common law robbery offenses were not crimes of violence.
See ECF No. 58 at p. 5; see generally Strickland
v. Washington, 466 U.S. 668 (1984) (articulating the
two-prong test for ineffective assistance of counsel claims).
This ineffective assistance claim fails because such an
objection would have been meritless, as indicated above.
above reasons, the Court will deny Petitioner's §
2255 motion and grant the ...