United States District Court, D. South Carolina, Florence Division
Bryan Harwell Chief United States District Judge.
matter is before the Court on Petitioner Enrique Garcia
Burgos's pro se Motion to Vacate, Set Aside, or
Correct his Sentence pursuant to 28 U.S.C. § 2255
(“§ 2255 motion”). ECF No. 308. The
Government has filed a Motion to Dismiss/Motion for Summary
Judgment. ECF No. 324. The Court denies Petitioner's
§ 2255 motion and grants the Government's motion for
the reasons herein.
27, 2016, a criminal complaint was filed charging Petitioner
and co-defendant Asuncion Arguello (“Arguello”)
with possession with intent to distribute a quantity of
cocaine and a quantity of heroin in violation of 21 U.S.C.
§ 841(a)(1), and conspiracy to possess with intent to
distribute a quantity of cocaine and a quantity of heroin in
violation of 21 U.S.C. § 846. ECF No. 1. On July 7,
2016, attorney Rose Mary Parham (“plea counsel”)
entered a notice of appearance as Petitioner's attorney.
ECF No. 25. Plea counsel represented Petitioner through his
guilty plea and sentencing.
October 16, 2018, a federal grand jury indicted Petitioner,
Arguello, and three co-defendants in a five-count superseding
indictment. ECF No. 161. Count one charged Petitioner with
conspiracy to possess with intent to distribute and to
distribute a quantity of heroin and a quantity of cocaine in
violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)©, and 846. Id. Count four charged
Petitioner with possession with intent to distribute a
quantity of heroin and a quantity of cocaine in violation of
21 U.S.C. §§ 841(a)(1), and 841(b)(1)©.
Id. Count five charged Petitioner with knowingly
using and carrying firearms during and in relation to, and
possessing firearms in furtherance of, a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A).
25, 2017, Petitioner entered into a written plea agreement
under which he agreed to plead guilty to count one of the
superseding indictment. ECF No. 233 ¶ 1. In return for
Petitioner's guilty plea, the government agreed to
dismiss the remaining counts. Id. ¶ 3.
Petitioner and the Government also entered a non-binding
stipulation providing that Petitioner should be held
accountable for a marijuana equivalency drug weight of at
least 1, 000 kilograms but less than 3, 000 kilograms of
marijuana, which resulted in a base offense level of 30.
Id. ¶ 6. The same day, Petitioner pled guilty
pursuant to the written plea agreement to count one of the
superseding indictment. ECF Nos. 233, 234, & 235.
United States Probation Office prepared a presentence
investigation report (“PSR”) dated September 20,
2017. The PSR found Petitioner's advisory guidelines
sentence range was 97 to 121 months, based on a criminal
history category of II and a total offense level of 29.
November 15, 2017, the Court held a sentencing hearing for
Petitioner. ECF No. 266. The Court adopted the PSR, and
granted Defendant's motion for variance. The Court
sentenced Petitioner to 85 months imprisonment followed by
three years of supervised release. ECF No. 270. Judgment was
entered November 20, 2017. Id. Petitioner did not
September 27, 2018,  Petitioner filed the instant § 2255
motion. ECF No. 308. On October 25, 2018, plea counsel filed
an affidavit addressing her representation of Petitioner. ECF
No. 315. Thereafter, the Government filed a motion to
dismiss/motion for summary judgment, ECF No. 324, and
Petitioner filed a response in opposition to the
Government's motion, ECF No. 327.
in federal custody may attack the validity of their sentences
pursuant to 28 U.S.C. § 2255. For a court to vacate, set
aside, or correct a sentence under § 2255, a petitioner
must prove 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). The
district court need not hold an evidentiary hearing on a
§ 2255 motion 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);
see United States v. Thomas, 627 F.3d 534, 539-40
(4th Cir. 2010). The determination of whether to hold an
evidentiary hearing ordinarily is left to the sound
discretion of the district court. Raines v. United
States, 423 F.2d 526, 530 (4th Cir. 1970).
“Letters, exhibits and other evidence not previously a
part of the record may be considered by the court as part of
the record in determining the necessity for an evidentiary
hearing under Section 2255.” Id. at 531.
“Affidavits also may be submitted and considered as
part of the record.” Rule 7, Rules Governing §
the district court denies § 2255 relief without an
evidentiary hearing, the nature of the court's ruling is
akin to a ruling on a motion for summary judgment.”
United States v. Poindexter, 492 F.3d 263, 267 (4th
Cir. 2007). “The court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); see
generally Rule 12 of the Rules Governing Section 2255
Cases (“The Federal Rules of Civil Procedure . . ., to
the extent that they are not inconsistent with any statutory
provisions or these rules, may be applied to a proceeding
under these rules.”). “A party asserting that a
fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in
the record . . .; or (B) showing that the materials cited do
not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence
to support the fact.” Fed.R.Civ.P. 56(c)(1). “The
evidence must be viewed in the light most favorable to the
non-moving party, with all reasonable inferences drawn in
that party's favor. The court therefore cannot weigh the
evidence or make credibility determinations.”
Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407,
413 (4th Cir. 2015) (internal citation and quotation marks
writ of habeas corpus and its federal counterpart, 28 U.S.C.
§ 2255, will not be allowed to do service for an appeal.
For this reason, nonconstitutional claims that could have
been raised on appeal, but were not, may not be asserted in
collateral proceedings.” Stone v. Powell, 428
U.S. 465, 477 n.10 (1976) (internal quotation marks and
citation omitted). “Even those nonconstitutional claims
that could not have been asserted on direct appeal can be
raised on collateral review only if the alleged error