United States District Court, D. South Carolina, Florence Division
L. WOOTEN SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court for consideration of the
petition to vacate, set aside, or correct a sentence pursuant
to 28 U.S.C. § 2255 filed by Petitioner Kenneth Allen
Carson. For the reasons stated below, the petition is denied.
Factual and Procedural History
was charged in a three-defendant, five-count indictment with
armed bank robbery (Count 1); using and carrying a firearm
during a crime of violence (Count 2); and being a felon in
possession of a firearm (Count 3). ECF No. 23. He pled guilty
to all three counts, and on February 26, 2004, the Court
sentenced him to 276 months on Counts 1 and 3, and 84 months
consecutive on Count 2, for an aggregate sentence of 360
months incarceration, followed by concurrent 5-year terms of
supervised release on each count. ECF No. 84.
classified as an armed career criminal under the Armed Career
Criminal Act (ACCA), which imposes a mandatory minimum
fifteen-year sentence on a felon who possesses a firearm and
who has three or more prior convictions for committing
certain drug crimes or “violent felon[ies].” 18
U.S.C. § 924(e)(1). Though the Presentence Investigation
Report (PSR) does not specifically state which offenses it
used to classify him as an armed career criminal, it appears
that the following South Carolina convictions were counted:
(1) Failure to Stop for a Police Vehicle (PSR ¶ 50);
(2) Assault and Battery of a High and Aggravated Nature
(ABHAN) (PSR ¶ 51);
(3) Burglary 2nd (PSR ¶ 52);
(4) Burglary 3rd (PSR ¶ 53); and
(5) ABHAN (PSR ¶ 55).
judgment was entered, he filed a direct appeal, but the
Fourth Circuit affirmed. United States v. Carson,
164 Fed.Appx. 433 (4th Cir. 2006).
January 2007, Petitioner timely filed a pro se petition under
28 U.S.C. § 2255, which the Court dismissed on the
merits after briefing. ECF Nos. 99, 122. He filed a direct
appeal, but the Fourth Circuit dismissed the appeal for
failure to prosecute. United States v. Carson, No.
09-6509 (4th Cir.), ECF No. 8.
March 2016, as required by 28 U.S.C. § 2244, Petitioner
filed a motion in the Fourth Circuit requesting authorization
to file a successive § 2255 petition to seek
resentencing in light of Johnson v. United States,
135 S.Ct. 2551 (2015). In re Carson, No. 16-261 (4th
Cir.), ECF No. 2. On May 3, 2016, the Fourth Circuit granted
his motion. Id., ECF No. 11-1. His § 2255
petition was docketed in this Court that day. ECF No. 145.
§ 2255 petition, Petitioner seeks a full resentencing
without the ACCA enhancement in light of Johnson.
Id. The Government filed a response in opposition,
raising numerous reasons why his petition should be denied.
ECF No. 204. He then filed a reply. ECF No. 205.
matter is now ripe for decision.
28 U.S.C. § 2255
2255 provides that a prisoner in custody under sentence of a
federal court may file a petition in the court that imposed
the sentence to vacate, set aside, or correct the sentence. A
petitioner is entitled to relief under § 2255 if he
proves by a preponderance of the evidence one of the
following: (1) that the sentence was imposed in violation of
the Constitution or laws of the United States; (2) that the
court was without jurisdiction to impose such sentence; (3)
that the sentence was in excess of the maximum authorized by
law; or (4) that the sentence is otherwise subject to
collateral attack. See 28 U.S.C. § 2255(a);
Miller v. United States, 261 F.2d 546, 547 (4th Cir.
1958) (per curiam).
deciding a § 2255 petition, a court need not hold a
hearing if “the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b). The Court has
thoroughly reviewed the motions, files, and records in this
case, liberally construing Petitioner's filings, and
finds that no hearing is necessary.