United States District Court, D. South Carolina, Florence Division
L. Wooten, Chief United States District Judge.
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
Factual and Procedural History
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.
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.
November 12, 2016,  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.
matter is now ripe for decision.
28 U.S.C. § 2255
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
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.
Standard of Review
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).