United States District Court, D. South Carolina, Columbia Division
AMENDED ORDER AND OPINION 
matter is before the court on Petitioner Theodore Fulton'
spro se Motion to Vacate, pursuant to 28 U.S.C.
§ 2255 (ECF No. 914), and the Government's Motion to
Dismiss (ECF No. 932). For the reasons stated herein, the
court DENIES Petitioner's Motion to
Vacate (ECF No. 914) and DENIES as moot the
Government's Motion to Dismiss (ECF No. 932).
FACTUAL AND PROCEDURAL BACKGROUND
August 6, 2014, Petitioner was indicted for one count of
conspiracy to unlawfully possess with intent to distribute
and to distribute oxycodone in violation of 21 U.S.C. §
841(a)(1) and two counts of knowingly, intentionally, and
unlawfully possessing with intent to distribute and
distributing a quantity of oxycodone within 1000 feet of a
school in violation of 21 U.S.C. § 860(a). (See
ECF No. 1.) On January 5, 2015, Petitioner pled guilty to
Count One of the Superseding Indictment (ECF No. 182). (ECF
December 2015, Petitioner substantially assisted the
Government by testifying during the prosecution of other
persons involved in the conspiracy. (ECF No. 855 ¶ 8.)
Because of Petitioner's cooperation, the Government moved
for a sentence reduction based upon substantial assistance to
the Government. (ECF No. 716.)
January 9, 2017, Petitioner was sentenced to 110 months in
prison (ECF No. 856).
January 29, 2018, Petitioner filed this Motion To Vacate (ECF
No. 914), which he supplemented with a Memorandum in Support
on May 3, 2018 (ECF No. 926). On June 4, 2018, the Government
filed a Response in Opposition (ECF No. 931) and a Motion to
Dismiss (ECF No. 932). Petitioner replied to the Government's
Response (ECF No. 933) and filed a Response in Opposition to
the Motion to Dismiss (ECF No. 936).
prisoner in federal custody and under sentence of a federal
court may petition the court that imposed the sentence to
vacate, set aside, or correct the sentence. See 28
U.S.C. § 2255. The prisoner may be entitled to relief
upon a showing that: (1) the sentence was imposed in
violation of the Constitution or laws of the United States;
(2) the court was without jurisdiction to impose such
sentence; (3) the sentence was in excess of the maximum
authorized by law; or (4) the sentence is otherwise subject
to collateral attack. Id. A petitioner collaterally
attacking his sentence or conviction pursuant to § 2255
bears the burden of proving the grounds for the attack by a
preponderance of the evidence. White v. United
States, 352 F.Supp.2d 684, 686 (E.D. Va. 2004) (citing
Miller v. United States, 261 F.2d 546 (4th Cir.
1958)). In ruling on a § 2255 motion, the court may
dismiss the motion without a hearing when "it plainly
appears from the motion, any attached exhibits, and the
record of prior proceeding, that the moving party is not
entitled to relief." 28 U.S.C. § 2255(b).
to 28 U.S.C. § 2255, a one-year period of limitation
applies to a motion to vacate. § 2255(f). The limitation
period begins with the latest of:
(1) the date on which the judgment of conviction becomes
final; (2) the date on which the impediment to making a
motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action; (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; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
is a pro se litigant, so the court is required to
liberally construe his arguments. Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978); see also Haines v.
Kerner, 404 U.S. 519, 520 (1972) (holding a pro
se plaintiffs "inartful pleadings" may be
sufficient to provide the opportunity to offer supporting
was sentenced on January 4, 2017 (ECF No. 852), and judgment
was entered on January 9, 2017 (ECF No. 856). Under
§2255(f), the one-year period of limitations began on
January 9, 2018. Petitioner filed his Motion on January 29,
2018 (ECF No. 914), ...