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Prophet v. United States

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

February 12, 2019

Freddie Prophet, 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 Freddie Prophet. For the reasons stated below, the Court dismisses the petition.

         I. Factual and Procedural History

          Petitioner was charged in a three-defendant, five-count indictment with armed bank robbery (Count 1); using and carrying a firearm during a crime of violence (Count 2); and being a felon in possession of a firearm (Count 5). ECF No. 23. He pled guilty to all three counts, and the Court sentenced him to a total of 259 months, consisting of 175 months on Counts 1 and 5, and 84 months consecutive on Count 2. Judgment was entered on March 4, 2004. ECF No. 83. He did not file a direct appeal.

         Petitioner was classified as an armed career criminal under the Armed Career Criminal Act (ACCA), which imposes a mandatory minimum fifteen-year sentence on a felon who possesses a firearm and who has three or more prior convictions for committing certain drug crimes or “violent felon[ies].” 18 U.S.C. § 924(e)(1).[1]

         On August 8, 2016, [2] Petitioner filed this petition under 28 U.S.C. § 2255, asserting that, in light of Johnson v. United States, 135 S.Ct. 2551 (2015), he no longer has the required number of predicate convictions to be an armed career criminal. ECF No. 153 at 4. The Government filed a motion to dismiss, asserting that the petition should be dismissed as untimely, ECF No. 163, and he then filed a response to the Government's motion, ECF No. 168. 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. Timeliness under AEDPA

          The Government argues that Petitioner's § 2255 petition should be ...


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