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 Freddie Prophet.
For the reasons stated below, the Court dismisses the
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.
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).
August 8, 2016,  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.
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
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).
Timeliness under AEDPA
Government argues that Petitioner's § 2255 petition
should be ...