United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL, UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner Monique Teshura
Knox's pro se motion to vacate, set aside, or correct her
sentence pursuant to 28 U.S.C. § 2255. See ECF
No. 132. The Government has filed a Motion to Dismiss/Motion
for Summary Judgment. See ECF No. 149. The Court
denies Petitioner's § 2255 motion and grants the
Government's motion for the reasons herein.
January 9, 2017, Petitioner, represented by attorney James
McBratney Jr. (“plea counsel”), pled guilty
pursuant to a written plea agreement to Count 6 of the
Superseding Indictment, which charged her with possession
with intent to distribute and distribution of a quantity of
heroin, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C). See ECF Nos. 79, 82, & 84. The Court
allowed Petitioner to remain on bond both before and after
her guilty plea. See ECF No. 82. One condition of
bond was that she “avoid all contact, directly or
indirectly, with any person who is or may be a victim or
witness in the investigation or prosecution.” ECF No.
34 at p. 2.
January 18, 2017, the United States Probation Office filed a
Petition for Action on Conditions of Pretrial Release
alleging Petitioner had “made threatening comments to a
witness during December 2016.” See ECF No. 87.
The Court signed the petition, an arrest warrant was issued,
and Petitioner was arrested. See ECF Nos. 88 &
January 25 and 26, 2017, the Magistrate Judge held a bond
revocation hearing. See ECF Nos. 91-94. Agent Freddy
M. Curry of the Fifteenth Judicial District Drug Force Unit
testified that on December 7, 2016, Petitioner (out on bond
at the time) was at a gas station when she approached an
informant in the case and said, “I knew what you did,
and we're going to get your a**.” ECF No. 149-2 at
pp. 2-3, 7. Agent Curry further testified he believed
the information provided by the informant was reliable.
Id. at p. 11. Plea counsel cross-examined Agent
Curry and objected to his testimony. Id. at pp.
5-10. The Magistrate Judge concluded Petitioner's alleged
conduct did in fact occur but noted it had happened before
her guilty plea, and after hearing argument from plea
counsel, the Magistrate Judge continued Petitioner on bond
with added restrictions. Id. at pp. 12-16.
the Probation Office prepared a presentence investigation
report (“PSR”) determining Petitioner had a
Category II criminal history and a base offense level of 24.
PSR [ECF No. 122] at ¶¶ 34, 40. The PSR further
determined that she had threatened a witness (based on the
aforementioned December 7, 2016 incident at the gas station)
and therefore applied a two-level enhancement for obstruction
of justice under United States Sentencing Guideline
(“U.S.S.G.”) § 3C1.1, resulting in a total
adjusted offense level of 26. Id. at ¶¶
11, 28, 44. The PSR also concluded Petitioner was not
entitled to a three-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1, and thus her
resulting advisory guideline range was 70 to 87 months'
imprisonment. Id. at ¶¶ 29-30, 47, 74.
Notably, plea counsel filed objections to the PSR-including
to the obstruction of justice enhancement and to the denial
of acceptance of responsibility. See Revised
Addendum to PSR [ECF No. 122-2].
10, 2017, the Court conducted a sentencing hearing at which
it heard argument from plea counsel and awarded Petitioner a
three-level reduction for acceptance of responsibility,
thereby reducing her offense level to 23 and resulting in an
advisory guideline range of 51 to 63 months. See ECF
Nos. 127 & 144. The Court further granted plea
counsel's oral motion for a downward variance, and
ultimately sentenced Petitioner to 48 months'
imprisonment followed by three years' supervised release.
See ECF Nos. 120 & 126. Judgment was entered the
same day, see ECF No. 126, and Petitioner did not
September 25, 2017,  Petitioner filed the instant § 2255
motion. See ECF No. 132. On November 27, 2017, plea
counsel filed an affidavit addressing his representation of
Petitioner. See ECF No. 144. Thereafter, the
Government filed a Motion to Dismiss/Motion for Summary
Judgment, see ECF No. 149, and Petitioner filed a
response in opposition to the Government's motion.
See ECF Nos. 150 & 163.
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).
“Letters, exhibits and other evidence not previously a
part of the record may be considered by the court as part of
the record in determining the necessity for an evidentiary
hearing under Section 2255.” Id. at 530.
“Affidavits also may be submitted and considered as
part of the record.” Rule 7, Rules Governing §
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
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