United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
Margaret B. Seymour Senior United States District Judge
Cherry (“Movant”) is an inmate in custody at
Evans Correctional Institution in Bennettsville, South
Carolina. On September 19, 2016, Movant, proceeding pro se,
filed a motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct a sentence. ECF No. 874. This matter is
before the court on a motion to dismiss and for summary
judgment filed by Respondent United States of America (the
“government”) on October 19, 2016. ECF No. 877.
FACTUAL AND PROCEDURAL HISTORY
20, 2005, a federal grand jury returned a superseding
Indictment charging Movant with conspiracy to distribute a
controlled substance (crack cocaine) in violation of 21
U.S.C. §§ 841(a)(1) and 841 (b)(1)(A) (Count One),
and possession with intent to distribute crack cocaine in
violation of 21 U.S.C. §§ 841(a)(1) and 841
(b)(1)(C) (Counts Two, Four, Five, Ten, Fourteen, Twenty-One,
Thirty-Three, Thirty-Eight). ECF No. 27. At the time of the
Indictment, Movant was in state custody on unrelated charges.
Movant appeared in federal court on a Writ of Habeas Corpus
ad Prosequendum. ECF No. 64. Movant pleaded guilty to Count
One on November 30, 2005. ECF No. 305. On August 28, 2006,
Movant was sentenced by this court to a 120-month prison
term. ECF No. 509. The government moved to dismiss the
remaining charges against Movant. Id. The court
entered judgment on September 5, 2006. Id. Movant
did not appeal his conviction or sentence. On October 5,
2006, Movant was sentenced to twenty years in state prison
for an unrelated burglary charge under South Carolina Code
§ 16-11-311. ECF No. 730. The state court ordered that
Movant's state sentence was to run concurrently to his
federal sentence. Id.
September 6, 2016, Movant filed a motion asserting that his
federal and state sentences should run concurrently. ECF No.
871. The court denied that motion on May 22, 2017, informing
Movant that “[Movant's] remedy is to follow the
procedures set forth by the Federal Bureau of Prisons in
Program Statement 5160.05.” ECF No. 908.
September 19, 2018, Movant filed a § 2255 motion,
asserting that “Movant was sentenced to 120 months in
the federal custody first and was then transferred back to
Richland County jail, on or about (10) days later I was
sentenced to (20) years in the State that was ordered to run
concurrent with fed. sentence.” ECF No. 874 at 2.
Movant elaborates that he “received a detailed letter
from fed. court the year of 2010 that I owe 120 months to the
federal jurisdiction.” Id. at 3 (errors in
October 19, 2016, the government filed a motion to dismiss
and for summary judgment. ECF No. 877. In its motion, the
government asserts that Movant failed to state a claim for
relief under § 2255. ECF No. 877-1 at 2. Further, the
government asserts that even if Movant had stated a claim for
relief, Movant's § 2255 motion was untimely.
Id. at 3. By order filed October 20, 2016, pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), Movant was advised of the dismissal procedures and the
possible consequences if he failed to respond adequately. ECF
No. 878. Movant filed no response.
Failure to State a Claim under § 2255
Pursuant to 28 U.S.C. § 2255:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
errors in conviction and sentencing are encompassed within
the scope of § 2255. As such, errors that are outside
the categories outlined in the statute will only be reviewed
under § 2255 if they indicate a “fundamental
defect which inherently results in a complete miscarriage of
justice, [or] an omission inconsistent with the rudimentary
demands of fair procedure.” Hill v. United
States, 368 U.S. 424, 428 (1962).
has not alleged that his sentence violated the Constitution.
Neither has Movant alleged that the court lacked jurisdiction
when it sentenced him. Nor has Movant alleged his sentence
was in excess of any statutory maximum. Movant has also
failed to identify any aspect of his sentence that would
trigger the categories outlined in Hill. As such,
Movant has failed to state a claim under § 2255.
Timeliness of ...