United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge
the Court is Terrance Smith's ("Petitioner")
Motion pursuant to Title 28, United States Code, Section 2255
to Vacate Sentence by a Person in Federal Custody ("2255
Motion"). Having thoroughly reviewed the Parties'
filings in this case, this Court finds this matter is ripe
for judicial determination. For the reasons set forth below,
Petitioner's 2255 motion is DENIED.
18, 2003, a jury sitting in the Eastern District of Virginia
returned a guilty verdict against Petitioner on four counts.
ECF No. 39. Count one charged Petitioner with Conspiracy to
Distribute and Possess with Intent to Distribute Cocaine,
Cocaine Base and Heroin in violation of Title 21 U.S.C.
§ 846. Id. Counts six and fourteen charged
Petitioner with Distribution of Cocaine in violation of Title
21 U.S.C. § 841. Id. Count thirty-one charged
Petitioner with Distribution of Cocaine Narcotics - Sell,
Distribute, or Dispense in violation of Title 21 U.S.C.
§ 841. Id.
sentencing, in light of Petitioner's prior Arizona
aggravated assault convictions, Petitioner was determined to
be a "career offender" under the United States
Sentencing Guidelines ("Guidelines"), §§
4B1.1 and 4B 1.2(a). Petitioner was sentenced to 360 months
imprisonment on October 15, 2003. ECF No. 48.
12, 2007, Petitioner filed his first 2255 Motion to vacate
his sentence. ECF No. 174, which was subsequently dismissed
on January 31, 2008. ECF No. 231. On June 18, 2012,
Petitioner filed a Motion to Dismiss. ECF No. 352.
Petitioner's Motion to Dismiss was construed as a 2255
Motion and was dismissed without prejudice on June 21, 2012.
ECF No. 353. On July 28, 2014, Petitioner filed a successive
2255 Motion, ECF No. 385, but on August 08, 2014, the United
States Court of Appeals for the Fourth Circuit ("Fourth
Circuit") denied Petitioner authorization under 28
U.S.C. § 2244 to file a successive 2255 Motion. ECF No.
390. Consequently, this Court dismissed Petitioner's 2255
Motion for lack of jurisdiction. ECF No. 392.
17, 2016, Petitioner moved the Fourth Circuit for
authorization to file a successive motion under 28 U.S.C.
§ 2244. ECF No. 425. The Fourth Circuit granted
Petitioner authorization to file a successive motion because
he made a prima facie showing that the new rule of
constitutional law announced in Johnson v. United
States, 135 S.Ct. 2551 (2015), made retroactively
applicable to cases on collateral review by Welch v.
United States, 136 S.Ct. 1257 (2016), may apply to
Petitioner's case. Id. On that same date,
Petitioner filed the instant 2255 Motion. ECF No. 426. On
March 28, 2015, Respondent filed their response. ECF No. 449.
On May 01, 2017, Petitioner filed his reply. ECF. No. 455.
petitioner in federal custody wishes to collaterally attack
his sentence or conviction, the appropriate motion is a
§ 2255 motion. United States v. Winestock, 340
F.3d 200, 203 (4th Cir. 2003). Section 2255 of Title 28 of
the United States Code governs post-conviction relief for
federal prisoners. It provides in pertinent part:
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
28 U.S.C. § 2255(a).
proceeding to vacate a judgment of conviction, the petitioner
bears the burden of proving his or her claim by a
preponderance of the evidence. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958). Motions under
§ 2255 "will not be allowed to do service for an
appeal." Sunal v. Large, 332 U.S. 174, 178
(1947). For this reason, issues already fully litigated on
direct appeal may not be raised again under the guise of a
collateral attack. Boeckenhaitpt v. United States,
537 F.2d 1182, 1183 (4th Cir. 1976).
deciding a § 2255 motion, the Court must promptly grant
a hearing "unless 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). Whether a
hearing is mandatory for a § 2255 Motion and whether
petitioner's presence is required at the hearing is
within the district court's sound discretion and is
reviewed for abuse of discretion. Raines ...