United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON McGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendant's pro se motion
for relief under 28 U.S.C. § 2255, filed March 12, 2019.
ECF No. 89. On March 22, 2019, Defendant filed an affidavit
in support of his motion. ECF No. 92. The Government filed a
motion for summary judgment and response in opposition to
Defendant's motion. ECF Nos. 93, 94. Pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
the court advised Defendant of the summary judgment procedure
and the consequences if he failed to respond. ECF No. 95.
Defendant filed a reply. ECF No. 97. This matter is now ripe
February 19, 2015, Defendant was charged in a one-count
Indictment with possession of a firearm by a felon. ECF No.
2. Defendant entered into a Plea Agreement to plead guilty to
the single count, but withdrew from it before entering his
guilty plea. ECF Nos. 30, 31. On June 24, 2015, Defendant
filed a “Motion for Pretrial Determination of
Defendant's Status under 18 U.S.C. § 924(e)”
seeking to determine whether he was exposed to enhanced
penalties as an Armed Career Criminal. ECF No. 35. The
Government filed an Information providing notice it would
seek enhanced penalties under § 924(e) based on the
following convictions: a 1991 conviction for Pointing and
Presenting a Firearm, a 1992 conviction for Strong Armed
Robbery, a 1996 conviction for Armed Robbery, and a 1996
conviction for Armed Robbery. ECF No. 42. The Government also
filed a response opposing Defendant's motion for pretrial
determination of his Armed Career Criminal status. ECF No.
43. A hearing was held on the motion on July 15, 2015, at
which the court explained it could not make a final ruling on
the ACCA issue without a PreSentence Report
(“PSR”), but noted it appeared Defendant would be
an Armed Career Criminal based on “four countable ACCA
convictions.” ECF No. 73 at 22. Defendant thereafter
entered into a Plea Agreement, preserving his right to appeal
his ACCA status. ECF No. 51. He entered a guilty plea on
August 18, 2015. ECF No. 52.
determined Defendant had the four qualifying predicate
convictions for the Armed Career Criminal enhancement listed
above. ECF No. 66 at ¶¶ 22, 26, 30. Defendant
objected to these convictions qualifying as predicates for
ACCA purposes. ECF No. 66-2.
November 18, 2015, the court overruled Defendant's
objection to his ACCA predicates and sentenced Defendant to
180 months' incarceration as an Armed Career Criminal.
ECF No. 63. The Fourth Circuit Court of Appeals affirmed the
judgment, as Defendant “has threequalifying prior
convictions to warrant his armed career criminal
designation.” United States v. Weston, 681
Fed.Appx. 235, 238 (4th Cir. 2017). It also found
Defendant's argument regarding not being represented by
counsel for his Strong Arm Robbery conviction failed because
Defendant was unable to overcome the presumption he was
informed of his right to counsel as required and, if he was
not represented, it was because he waived his right to
counsel. Id. at 237-38. The instant § 2255
motion followed the appeal.
§ 2255 motion, Defendant argues Strong Armed Robbery is
not a violent felony and does not meet the requirements to be
an ACCA predicate offense. ECF No. 89 at 4. He also argues
his Armed Robbery convictions are not “violent felonies
for purposes of ACCA” because at the time of his
conviction, the South Carolina statute read differently than
the present statute. Id. at 5. Finally, he argues
his convictions for Strong Armed Robbery and Pointing and
Presenting should not be counted as ACCA predicates because
“the record did not show that movant was afforded his
Sixth Amendment Right to Counsel.” Id. at 7.
response, the Government argues the claims brought by
Defendant were raised and denied on appeal, and no
“countervailing equitable considerations exist to
justify readjudication of those issues.” ECF No. 94 at
4. Defendant filed a reply, noting he is abandoning all
grounds except his argument regarding lack of counsel for his
convictions for Strong Armed Robbery and Pointing and
Presenting a Firearm. ECF No. 97. He argues there is no
evidence showing he was afforded counsel or waived his right
to counsel, and “per the United States Supreme Court
‘presumption of a waiver from a silent record is
impermissible.'” Id. at 2. He contends the
“complete silence regarding representation”
should raise a presumption in his favor, instead of against
him as ruled by the Fourth Circuit. Id. at 2-3.
is well-settled that a petitioner cannot circumvent a proper
ruling . . . on direct appeal by re-raising the same
challenge in a § 2255 motion.” United States
v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013). Here,
Defendant brings exactly the same claim raised in his appeal
- that he did not receive the benefit of counsel in entering
his guilty pleas to Strong Armed Robbery and Pointing and
Presenting a Firearm, and therefore they cannot be considered
predicate offenses for ACCA status. As noted above, the
Fourth Circuit has directly ruled on this issue, and affirmed
the district court's overruling of this argument.
Weston, 681 Fed.Appx. at 238.
Defendant argues the Fourth Circuit was incorrect in its
ruling, the Appeals' Court decision is now “law of
the case, ” and “must be followed in all
subsequent proceedings in the same case in the trial court or
on a later appeal unless: (1) a subsequent trial produces
substantially different evidence, (2) controlling authority
has since made a contrary decision of law applicable to the
issue, or (3) the prior decision was clearly erroneous and
would work manifest injustice.” TFWS, Inc. v.
Franchot, 572 F.3d 186, 191 (4th Cir. 2009). The Fourth
Circuit has the very issue Defendant contests, and this court
is bound by that decision unless the prior decision was
“clearly erroneous and would work a manifest
injustice.” Such is not the case here.
has cited a United States Supreme Court case holding
“presumption of a waiver from a silent record is
impermissible.” Miranda v. Arizona, 384 U.S.
436, 476 (1966). However, Miranda considered an
individual's waiver of right to counsel in a custodial
interrogation, not in a guilty plea. And although Defendant
argues the Fourth Circuit “cited to no authority
establishing such a presumption” that the state courts
followed state law in offering trial/plea counsel, the
Appeals Court did cite cases holding a “presumption of
regularity. . . makes it appropriate for defendant to have
burden of showing irregularity of final plea, ” and
“uncorroborated, inconclusive, self-serving testimony
about distant events was insufficient to carry burden of
showing invalid prior conviction.” Weston, 681
Fed.Appx. at 237-38 (citing Parke v. Raley, 506 U.S.
20, 38-34 (1992) and United States v. Jones, 977
F.2d 105, 110-11 (4th Cir. 1992)). Therefore, there is no
showing of an erroneous decision that would work a manifest
reasons above, summary judgment for the Government is
appropriate on all grounds. Defendant's ...