United States District Court, D. South Carolina, Beaufort Division
C. NORTON, UNITED STATES DISTRICT JUDGE.
matter is before the court on petitioner Ernest Bryan's
(“Bryan”) motion to vacate, set aside, or correct
his federal sentence pursuant to 28 U.S.C. § 2255, ECF
No. 62. The government filed a motion to dismiss or, in the
alternative, for summary judgment, ECF No. 73. For the
reasons set forth below, the court denies Bryan's
petition and grants the government's motion for summary
August 13, 2013, Bryan was named in an indictment charging
him with possession with intent to distribute cocaine base,
marijuana, and MDMA in violation of 21 U.S.C. § 841
(Count 1); felony possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) (Count
2); and possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)
(Count 3). On December 1, 2014, Bryan pled guilty to Counts 1
and 2 pursuant to a written plea agreement. On June 17, 2015,
the court sentenced Bryan to 180 months imprisonment and five
years of supervised release. On June 29, 2015, Bryan filed a
motion for reconsideration of his sentence in light of the
Supreme Court's then-recent decision in Johnson v.
United States, 135 S.Ct. 2551 (2015). The court granted
Bryan's motion and, on August 7, 2015, entered judgment,
reducing Bryan's sentence to 151 months imprisonment and
three years of supervised release.
21, 2016, Bryan, acting pro se, filed the instant
motion to vacate, set aside, or correct his federal sentence
pursuant to 28 U.S.C. § 2255. ECF No. 62. On October 31,
2016, the government filed a motion to dismiss the petition
or, in the alternative, for summary judgment. ECF No. 73.
Bryan responded to the government's motion on December 1,
2016. ECF No. 78.
district courts are charged with liberally construing
petitions filed by pro se litigants to allow the
development of a potentially meritorious case. See Hughes
v. Rowe, 449 U.S. 5, 9-10 (1980). Pro se
petitions are therefore held to a less stringent standard
than those drafted by attorneys. See Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Liberal
construction, however, does not mean that a court may ignore
a clear failure in the pleading to allege facts that set
forth a cognizable claim. See Weller v. Dep't of Soc.
Servs., 901 F.3d 387, 390-91 (4th Cir. 1990).
to 28 U.S.C. § 2255(a):
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
petitioner must prove the grounds for collateral attack by a
preponderance of the evidence. See King v. United
States, 2011 WL 3759730, at *2 (D.S.C. Aug. 24, 2011)
(citing Miller v. United States, 261 F.2d 546, 547
(4th Cir. 1958)).
a motion to dismiss, the court considers matters outside of
the pleadings, such as a party's supporting memoranda and
attachments, the court treats the motion as one for summary
judgment. Fed.R.Civ.P. 12(d). “The court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a)
(2010). At the summary judgment stage, the court must view
the evidence in the light most favorable to the non-moving
party and draw all justifiable inferences in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
contends that he is entitled to relief because his counsel
rendered ineffective assistance that fell below a
constitutionally permissible standard. Bryan asserts five
grounds in support of his ineffective-assistance claim: that
his counsel (1) failed to contest Bryan's sentence under
Apprendi v. New Jersey, 530 U.S. 466 (2000), (2)
failed to object to Bryan's absence at his resentencing,
(3) failed to move to withdraw Bryan's guilty plea after
the court granted his motion to reduce his sentence, (4)
failed to object to the court's use of Bryan's prior
felony convictions in Georgia to enhance his sentence as a
Career Offender, and (5) failed to request a variance based
on Bryan's medical issues. The court addresses each in
turn, finding no ground that supports relief.
Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court announced a two-part test for determining
whether a convicted person is entitled to relief on the
ground that his counsel rendered ineffective assistance.
“To establish cause for [a] default based upon
ineffective assistance of counsel, [petitioner] must show
that [(1)] [his] attorney['s] performance fell below an
objective standard of reasonableness and [(2)] that [he]
suffered prejudice as a result.” United States v.
Mikalajunas, 186 F.3d 490, 492 (4th Cir. 1999) (citing
Strickland, 466 U.S. at 687). “There is a
strong presumption that counsel's performance falls
within the ‘wide range of professional assistance,'
[and] the defendant bears the burden of proving that
counsel's representation was unreasonable under
prevailing professional norms . . . .” Kimmelman v.
Morrison, 477 U.S. 365, 381 (1986) (quoting
Strickland, 466 U.S. at 688-689).
Judicial scrutiny of counsel's performance must be highly
deferential. It is all too tempting for a defendant to
second-guess counsel's assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. A fair assessment of attorney
performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the