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Morrison v. United States

United States District Court, D. South Carolina, Florence Division

June 18, 2019

Russhel Morrison, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. BRYAN HARWELL UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner's pro se [ECF No. 1043] motion to vacate pursuant to 28 U.S.C. § 2255.

         On May 24, 2019, the government filed a motion for summary judgment arguing that Petitioner's motion is untimely. On May 30, 2019, a Roseboro Order was issued advising Petitioner that a motion to dismiss and/or for summary judgment had been filed and that her failure to respond could result in the dismissal of her case. See Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975). Petitioner filed a response to the government's motion. For the reasons stated below, the Court grants Respondent's motion for summary judgment, dismisses Petitioner's motion to vacate, and dismisses this case with prejudice.[1]

         Procedural History

         On September 9, 2014, Petitioner pled guilty to count one of the superseding indictment, which alleged conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. The presentence investigation report (“PSR”) prepared by the U.S. Probation Office determined that Petitioner's advisory sentencing guideline range was 27 to 33 months in prison based on a total offense level of 18 and criminal history category of I.

         On January 29, 2015, Petitioner's bond was revoked and a bench warrant was issued based on her failure to report to her probation officer. Sometime after Petitioner's guilty plea but before her sentencing hearing, Petitioner voluntarily absconded and remained a fugitive until her arrest on the bench warrant on June 6, 2018. The Court held the matter in abeyance for over two years but sentenced Petitioner in her absence on November 21, 2017. Petitioner's counsel was present at the sentencing hearing.

         Before sentencing, the Court provided notice of its intent to depart upward from the applicable sentencing guideline range based on Petitioner's prolonged fugitive status. On November 21, 2017, the Court sentenced Petitioner to a 120 month term of imprisonment followed by a 3 year term of supervised release. Judgment was entered on November 28, 2017.

         As stated above, Petitioner was arrested on June 6, 2018, and began serving her 120 month term of imprisonment.

         Petitioner filed the instant motion to vacate pursuant to 28 U.S.C. § 2255 on or about February 11, 2019.

         Applicable Law

         Prisoners 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).

         A 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 ...


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