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Cherry v. United States

United States District Court, D. South Carolina, Columbia Division

November 9, 2018

Antonio Cherry, Movant,
United States of America, Respondent.


          Margaret B. Seymour Senior United States District Judge

         Antonio 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.


         On July 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.

         On 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.

         On 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 original).

         On 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.


         a. 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 the sentence.

         Not all 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).

         Movant 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.

         b. Timeliness of ...

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