United States District Court, D. South Carolina, Florence Division
Bryan Harwell, United States District Judge.
matter is before the Court on Petitioner Devonte Olendus
Wheeler's (“Petitioner's”) pro
se [ECF No. 165] motion to vacate, set aside, or correct
sentence (“motion to vacate”) pursuant to 28
U.S.C. § 2255. Also pending is the Government's [ECF
No. 180] motion to dismiss, Petitioner's [ECF No. 184]
motion to stay, Petitioner's [ECF NO. 189] motion to
appoint counsel, Petitioner's  motion to seal case,
and Petitioner's  motion to dismiss.
motion to vacate alleges three grounds for relief including
an allegation that he instructed his counsel to file a direct
appeal despite having waived his right to appeal in the plea
agreement and at sentencing. Petitioner's signed appeal
waiver [ECF No. 156] suggests Petitioner did not want to
appeal. However, the Court is constrained by Petitioner's
sworn statement that he requested that an appeal be filed
anyway. See United States v. Poindexter, 492 F.3d
263, 273 (4th Cir. 2007). Under the mandates of
Poindexter and the unique circumstances of this
case, the Court sees little harm in forgoing an evidentiary
hearing on this issue and granting Petitioner a belated
appeal. Accordingly, for the reasons explained more fully
below, the Court grants Petitioner's motion to vacate as
to ground three only and grants Petitioner a belated
History and Factual Background
27, 2015, Petitioner was indicted in a three count
indictment. [ECF No. 2]. Count one alleged a Hobbs Act
robbery in violation of 18 U.S.C. § 1951(a). Count two
alleged that Petitioner used or carried a firearm during the
crime of violence alleged in count one in violation of 18
U.S.C. § 924(c). Count three alleged that Petitioner
possessed an unregistered firearm in violation of 26 U.S.C.
§§ 5861(d) and 5871.
25, 2016, Petitioner pled guilty to count one (Hobbs Act
robbery) pursuant to a Rule 11(c)(1)(C) plea agreement, which
provided for a stipulated sentence of 144 months in prison.
On December 13, 2016, Petitioner was sentenced to 144 months
in prison consistent with the terms of his Rule 11(c)(1)(C)
plea agreement. At sentencing, Petitioner signed a waiver of
appeal indicating that he did not want to appeal.
See [ECF No. 156]. Judgment was filed on December
filed the instant pro se motion to vacate on
November 17, 2017.
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). Nonconstitutional 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 he is actually innocent, see Smith v.
Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d
deciding a motion to vacate, the court may summarily dismiss
the motion “[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief.” Rules
Governing Section 2255 Proceedings 4(b); see 28
U.S.C. § 2255(b) (a hearing is not required on a §
2255 motion if the record of the case conclusively shows that
petitioner is entitled to no relief). An evidentiary hearing
“is required when a movant presents a colorable [ ]
claim showing disputed material facts and a credibility
determination is necessary to resolve the issue.”
United States v. Coon, 205 Fed.Appx. 972, 973 (4th
Cir. 2006) (citing United States v. Witherspoon, 231
F.3d 923, 925-27 (4th Cir. 2000)). However, a hearing is not
required unless the claim shows “disputed facts
involving inconsistencies beyond the record.”
United States v. Robinson, 238 Fed.Appx.
954, 955 (4th Cir. 2007). Conclusory allegations contained
within affidavits do not require a hearing. Strong v.
Johnson, 495 F.3d 134, 139-40 (4th Cir. 2007).
“Thus, no hearing is required if the petitioner's
allegations ‘cannot be accepted as true because they
are contradicted by the record, inherently incredible, or
conclusions rather than statement of fact.' ”
Arredondo v. United States, 178 F.3d 778, 782 (6th
Cir. 1999) (quoting Engelen v. United States, 68
F.3d 238, 240 (8th Cir. 1995)).
motion to vacate alleges, among other things, ineffective
assistance of counsel. Claims of ineffective assistance of
counsel are constitutional in nature and therefore are
properly asserted under § 2255. The Sixth Amendment
provides: “In all criminal prosecutions, the accused
shall enjoy the right . . . to have the assistance of counsel
for his defense.” U.S. Constitution. amend VI. The
United States Supreme Court has interpreted the Sixth
Amendment to require that counsel be effective.
Strickland v. Washington, 466 U.S. 668, 686, (1984)
(quoting McMann v. Richardson, 397 U.S. 759, 771,
n.14 (1970)). In order to prevail on an ineffective
assistance claim, petitioner must satisfy the two-prong test
of Strickland that (1) his “counsel's
representation fell below an objective standard of
reasonableness, ” id. at 688; and (2) that
“there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
694. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. A court
applying the Strickland test may apply either prong
first and does not need to analyze both prongs of the test if
petitioner makes “an insufficient showing on
one.” Id. at 697.
examining the performance of counsel, there is “a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance . . .
.” Id. at 689. A reviewing court must be
highly deferential in scrutinizing counsel's performance
and must filter from its analysis the “distorting
effects of hindsight.” Id.
“deficient performance, ” a court must defer to
counsel's tactical decisions and give counsel the benefit
of a strong presumption of reasonableness. See Id.
at 689. While an attorney has a duty to investigate
reasonable claims and defenses, an attorney's performance
cannot be deemed ineffective or deficient if he fails to
raise a defense which is “very weak”. Smith
v. State of South Carolina, 882 F.2d 895, 898 (4th Cir.
1989); Sistrunk v. Vaughn, 96 F.3d 666, 671 (3rd
Cir. 1996). A habeas petitioner alleging prejudice must show
“that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result
is reliable.” Strickland, 466 U.S. at 687.
That the outcome may have been different but for
counsel's error is not dispositive of the
“prejudice” inquiry. Rather, a court must
determine whether the result of the proceeding was