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Guerra v. United States

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

December 13, 2018

Justin Nicholas Guerra, PETITIONER
v.
United States of America, RESPONDENT

          ORDER

          Terry L. Wooten, Chief United States District Judge.

         This matter comes before the Court for consideration of the pro se petition to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Justin Nicholas Guerra. For the reasons stated below, the Court dismisses the petition.

         I. Factual and Procedural History

         Petitioner was charged in a two-count indictment with transporting child pornography in interstate commerce (Count 1) and possession of child pornography (Count 2). ECF No. 2. He pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 2), and the Court sentenced him to 120 months of incarceration. ECF No. 72.

         After entry of judgment, Petitioner filed a direct appeal, but the Fourth Circuit affirmed on July 5, 2013. United States v. Guerra, 535 Fed.Appx. 214 (4th Cir. 2013). He did not file for a writ of certiorari with the Supreme Court.

         On November 12, 2016, [1] Petitioner filed this petition under 28 U.S.C. § 2255, petitioning that he is entitled to resentencing based on Amendment 801 to U.S.S.G. § 2G2.2(b)(3)(F), arguing that this amendment should be applied retroactively. The Government filed a motion to dismiss, asserting that the petition should be dismissed as untimely, ECF Nos. 163, and he has filed two responses to the Government's motion, ECF No. 97, 98.

         This matter is now ripe for decision.

         II. 28 U.S.C. § 2255

         Title 28, Section 2255 of the United States Code provides that a prisoner in custody under sentence of a federal court may file a petition in the court that imposed the sentence to vacate, set aside, or correct the sentence. A petitioner is entitled to relief under § 2255 if the petitioner proves by a preponderance of the evidence one of the following: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) (per curiam). “The scope of review of non-constitutional error is more limited than that of constitutional error; a non-constitutional error does not provide a basis for collateral attack unless it involves ‘a fundamental defect which inherently results in a complete miscarriage of justice,' or is ‘inconsistent with the rudimentary demands of fair procedure.'” Leano v. United States, 334 F.Supp.2d 885, 890 (D.S.C. 2004) (quoting United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999)). Conclusory and vague allegations without factual specifics cannot entitle a petitioner to relief. See Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992) (“Unsupported, conclusory allegations do not entitle a habeas petitioner to an evidentiary hearing.”).

         In deciding a § 2255 petition, a court need not hold a hearing 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). The Court has thoroughly reviewed the motions, files, and records in this case, liberally construing Petitioner's filings, and finds that no hearing is necessary.

         III. Standard of Review

         Petitioner brings this petition pro se. Courts are required to liberally construe pleadings filed by pro se litigants to allow for the development of potentially meritorious claims. See Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam). These pleadings are held to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). However, “[t]he ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed.” Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

         IV. Discussion

         A. ...


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