United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner's pro se [ECF
No. 1043] motion to vacate pursuant to 28 U.S.C. § 2255.
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.
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.
January 29, 2015, Petitioner's bond was revoked and a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
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.
stated above, Petitioner was arrested on June 6, 2018, and
began serving her 120 month term of imprisonment.
filed the instant motion to vacate pursuant to 28 U.S.C.
§ 2255 on or about February 11, 2019.
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