United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL, UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner's [ECF No. 90]
motion to vacate pursuant to 28 U.S.C. § 2255.
Petitioner moves to vacate his sentence arguing that he is no
longer a career offender under the U.S. Sentencing Guidelines
because his prior conviction for South Carolina common law
robbery is no longer a violent felony following Johnson
v. United States, 135 S.Ct. 2551 (2015). Petitioner,
through counsel, also moves to amend his original § 2255
motion to include a claim that Hobbs Act robbery under 18
U.S.C. § 1951 fails to qualify as a predicate crime of
violence for a § 924(c) conviction post-Johnson
and Welch v. United States, 136 S.Ct. 1257 (2016).
3, 2016, the government filed a response and motion for
summary judgment [ECF Nos. 94, 95]. On July 12, 2016, the
government filed a response in opposition to Petitioner's
motion to amend. For the reasons stated below, the Court
denies Petitioner's motion to amend as futile, grants
Respondent's Motion for Summary Judgment, dismisses
Petitioner's Motion to Vacate, and dismisses this case
December 15, 2009, Petitioner was indicted in a three count
indictment. Count 1 alleged a Hobbs Act robbery in violation
of 18 U.S.C. § 1951(a) that occurred on August 11, 2009.
Count 2 alleged the Petitioner used or carried a firearm
during the Hobbs Act robbery alleged in count 1 in violation
of 18 U.S.C. § 924(c). Count 3 alleged that Petitioner
was a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1).
5, 2010, Petitioner pled guilty to counts 1 and 2. The
presentence investigation report (“PSR”) prepared
by the U.S. Probation Office determined that Petitioner was a
career offender pursuant to U.S.S.G. § 4B1.1 and his
advisory guideline range was 262 to 327 months imprisonment.
September 22, 2010, Petitioner was sentenced to a term of 240
months, consisting of 156 months as to count one and 84
months (consecutive) as to count 2. The judgment was filed on
September 24, 2010. Petitioner did not pursue a direct
instant motion to vacate pursuant to 28 U.S.C. § 2255
was filed on May 31, 2016.
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).
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
Standard for Summary Judgment
judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c)(2) (2009). The
movant has the burden of proving that summary judgment is
appropriate. Once the movant makes the showing, however, the
opposing party ...