United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Henry Quaysean
Thomas's (“Petitioner”) pro se [ECF
No. 61] motion to vacate, set aside, or correct sentence
(“motion to vacate”) pursuant to 28 U.S.C. §
2255. Also pending is the government's [ECF No. 75]
motion to dismiss Petitioner's motion to vacate. For the
reasons stated below, the Court grants the government's
motion to dismiss, dismisses Petitioner's motion to
vacate, and dismisses this case with prejudice.
History and Factual Background
was indicted on September 27, 2016, in a four count
indictment for drug and firearms offenses. [ECF No. 2]. Count
one alleged possession with intent to distribute a quantity
of crack cocaine in violation of 21 U.S.C. §§
841(a)(1) and (b)(2)(C). Count two alleged possession with
intent to distribute a quantity of crack cocaine and a
quantity of marijuana in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(C), and (b)(1)(D). Count three alleged
felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) and 924(e) and count four
alleged that Petitioner used and carried a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1)(A).
February 27, 2017, Petitioner entered a guilty
to only the drug offense alleged in count two. [ECF No. 39].
The other counts were not yet dismissed. A presentence
investigation report ("PSR") dated April 7, 2017,
and revised on April 21, 2017, was prepared by the U.S.
Probation Office. The PSR found that Petitioner's
advisory guideline range as to count two was 30 to 37 months,
based on a total offense level of 15 and criminal history
category of IV. The PSR also suggested an upward departure
based on the numerous offenses which were not counted in
Petitioner's criminal history. [PSR, ECF No. 54 at ¶
108]. However, the PSR did not determine him to be a career
April 18, 2017, Petitioner signed a post-plea agreement
pursuant to Fed. R. Crim. P. 11(c)(1)(C), wherein Petitioner
and the government agreed to a sentencing guideline range of
84-90 months. [ECF No. 47]. The sentencing range was based on
the upward departure suggested by the PSR.
counsel's strategy was based on Petitioner's
significant criminal history and the concern that Petitioner
may be a career offender. [Affidavit of William F. Nettles,
IV, ECF No. 70]. Since one of Petitioner's charges was a
§ 924(c) violation, had Petitioner been a career
offender with a § 924(c) conviction, his guideline range
would have been 360 months to Life had Petitioner gone to
trial and lost. Id. A guilty plea with a full award
of acceptance of responsibility would have produced a
guideline range of 262 to 322 months in prison. Id.
Thus, trial counsel opted to plead Petitioner to the drug
offense alone to determine if Petitioner was a career
offender. Id. If Petitioner was not a career
offender, Petitioner would then plead guilty to the §
924(c) offense or be sentenced to an extra term of months to
account for the penalty for that offense. Id.
Once it was determined that Petitioner was not a career
offender, Petitioner executed the post-plea agreement to
reflect the additional months for the § 924(c) offense.
Id. Additionally, the other counts were dismissed
including the § 924(c) count and Petitioner was simply
given an upward departure on the drug count to account for
the § 924(c) firearm charge. Trial counsel states that
Petitioner was aware of the plan during the entire course of
his representation and the plan was discussed with Petitioner
both before and after the guilty plea. Id.
29, 2017, Petitioner was sentenced to 84 months in prison.
[Judgment, ECF No. 55]. Before imposing sentencing, the Court
conducted a colloquy with Petitioner regarding the Rule
11(c)(1)(C) post-plea agreement, which stipulated a
sentencing range of 84-90 months and included an appeal
waiver. During the colloquy, Petitioner indicated that he
entered into the Rule 11(c)(1)(C) post-plea agreement freely
and voluntarily and that he was freely and voluntarily
waiving his right to appeal.
sentencing, Petitioner also executed a document waiving his
right to appeal. [ECF No. 53]. The appeal waiver indicated
that Petitioner was notified by the court of his right to
appeal, that he discussed his right to appeal with his
attorney, and that he did not want
to appeal. Id.
filed the instant pro se motion to vacate pursuant to 28
U.S.C. § 2255 on April 29, 2018. [ECF No. 61]. The
government filed a response to Petitioner's motion to
vacate and a motion to dismiss on June 12, 2018. [ECF No.
75]. Petitioner did not file a response to the
government's motion to dismiss.
in federal custody may attack the validity of their sentences
pursuant to 28 U.S.C. § 2255. In order to move the court
to vacate, set aside, or correct a sentence under §
2255, a petitioner must prove that one of the following
occurred: (1) a sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose such a sentence; (3) the
sentence was in excess of the maximum authorized by law; or
(4) the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255(a). Nonconstitutional claims may be
brought pursuant to § 2255, but will not provide a basis
for collateral attack unless the error involves a
“fundamental defect which inherently results in a
complete miscarriage of justice.” United States v.
Addonizio, 442 U.S. 178, 185, 99 S.Ct., 2235, 2240
(1979); United States v. Morrow, 914 F.2d 608, 613
(4th Cir. 1990).
petitioner cannot ordinarily bring a collateral attack on the
basis of issues litigated on direct appeal. United States
v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013) (stating
petitioner “cannot ‘circumvent a proper ruling .
. . on direct appeal by re-raising the same challenge in a
§ 2255 motion'”); United States v.
Linder, 552 F.3d 391, 396 (4th Cir. 2009);
Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th
Cir.), cert denied, 429 U.S. 863, 97 S.Ct. 169 (1976). An
exception occurs where there has been an intervening change
in the law. Davis v. United States, 417 U.S. 333,
342, 94 S.Ct. 2298, 2302 (1974). Additionally, where a
defendant could have raised a claim on direct appeal but
fails to do so, the claim may only be raised in a federal
habeas proceeding if the defendant can show both cause for
and actual prejudice from the default, see Murray v.
Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d
397 (1986), or that she is actually innocent, see Smith
v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d
deciding a motion to vacate, the court may summarily dismiss
the motion “[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief.” Rules
Governing Section 2255 Proceedings 4(b); see 28
U.S.C. § 2255(b) (a hearing is not required on a §
2255 motion if the record of the case conclusively shows that
petitioner is entitled to no relief). An evidentiary hearing
“is required when a movant presents a colorable [ ]
claim showing disputed material facts and a credibility
determination is necessary to resolve the issue.”
United States v. Coon, 205 Fed.Appx. 972, 973 (4th
Cir. 2006) (citing United States v. Witherspoon, 231
F.3d 923, 925-27 (4th Cir. 2000)). However, a hearing is not
required unless the claim shows “disputed facts
involving inconsistencies beyond the record.”
United States v. Robinson, 238 Fed.Appx. 954, 955
(4th Cir. 2007). Conclusory allegations contained within
affidavits do not require a hearing. Strong v.
Johnson, 495 F.3d 134, 139-40 (4th Cir. 2007).
“Thus, no hearing is required if the petitioner's