United States District Court, S.D. Alabama, Southern Division
KRISTI K. DUBOSE, District Judge.
This action is before the Court on the Motion under 28 U.S.C. § 2255 to Correct, Set Aside, or Vacate Sentence (the Petition) (Doc. 34) filed by Petitioner Dewey Roshaun Pruitt, a federal prisoner proceeding pro se; the Government's response in opposition (Doc. 37); and Pruitt's Reply (Doc. 38) to the Response. The Court finds that Pruitt's § 2255 petition is due to be DENIED, that this action is due to be DISMISSED with prejudice, and that Pruitt is not entitled to a Certificate of Appealability or to proceed in forma pauperis on appeal.
1. Procedural History
On November 23, 2011, a grand jury of this district returned an indictment against Pruitt. Doc. 1. The indictment alleged in Count One that Pruitt violated 21 U.S.C. § 846; to wit, Pruitt conspired to distribute and posses with the intent to distribute marijuana. Under the representation of Carlos Williams, Pruitt plead guilty, pursuant to the plea agreement, to Count One of the indictment on March 27, 2012. Doc. 21. In the plea agreement, Pruitt waived his right to file a direct or collateral appeal.
Prior to sentencing, the United States Probation Office prepared a pre-sentence investigation report. Doc. 23. The pre-sentence report determined that Pruitt's base offense level was eighteen under U.S.S.G. § 2D1.1(c)(11). Doc. 23, p. 9. Pruitt's base offense level was increased three points because Pruitt was a "manager/supervisor and the offense involved five or more participants or was otherwise extensive" under U.S.S.G. § 3B1.1(b). Doc. 23, p. 9. Additionally, the guidelines called for a two-point credit for Pruitt's acceptance of responsibility under U.S.S.G. § 3E1.1(a) and a one-point credit for Pruitt providing timely information to the government as to his intent to plead guilty or his involvement in the offense under U.S.S.G. § 3E1.1(a). The pre-sentence report concluded that the total base guideline range was eighteen and a criminal history category of VI, which called for an advisory guideline range of fifty-seven to seventy-one months. Pruitt's offense, however, carried a statutory maximum of sixty months, so the guideline range was recalculated to fifty-seven to sixty months. Doc. 20, pp. 20-21.
On October 11, 2012, the Court sentenced Pruitt to fifty-seven months' imprisonment, followed by three years of supervised release. Doc. 28. No direct appeal was taken. On September 11, 2013, Pruitt filed the present Petition.
2. Habeas Generally
"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 law 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 the sentence.... If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been a such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(a)-(b).
Habeas relief is an extraordinary remedy which "may not do service for a [direct] appeal." United States v. Frady , 456 U.S. 152, 165 (1982). A petitioner who has waived or exhausted his right to appeal is presumed to stand "fairly and finally convicted." Id . at 164. "[U]nless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained far more limited." United Sates v. Addonizio , 442 U.S. 178, 185 (1979) (citation and quotation omitted); see also Burke v. United States , 152 F.3d 1329, 1331 (11th Cir. 1998) ("Nonconstitutional claims can be raised on collateral review only when the alleged error constitutes a fundamental defect which inherently results in the miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.") (citations and internal quotations omitted). "A habeas petitioner must present a claim in clear and simple language such that the district court may not misunderstand it." Dupree v. Warden , 715 F.3d 1295, 1299 (11th Cir. 2013). The Court, however, "liberally construe[s] petitions filed pro se." Id.
a. Procedural Bar
After sentencing, Pruitt took no direct appeal of his sentencing in the underlying criminal case. Now, Pruitt raises two challenges to the Court's sentence in his petition. Doc. 34. "Under the procedural default rule, a [petitioner] generally must advance an available challenge to a... sentence on direct appeal or else the [petitioner] is barred from presenting that claim in a § 2255 proceeding.'" McKay v. United States , 657 F.3d 1190, 1196 (11th Cir. 2011) (quoting Lynn v. United States , 365 F.3d 1225, 1234 (11th Cir. 2004)). The Supreme Court has described this rule as "neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in finality of judgments." Massaro v. United States , 538 U.S. 500, 504 (2003). Here, it is uncontested that Pruitt failed to seek relief of any of his claims on direct appeal. Thus, he is procedurally defaulted on his claim that the Court erroneously enhanced his sentence under U.S.S.G. § 3B1.1(b).
i. Procedural Bar Exceptions
Pruitt's procedural default, however, can be overcome if it can be shown that either of two exceptions apply: (1) a petitioner must show the cause of the default and show actual prejudice due to the cause or (2) a petitioner must show that there is a fundamental miscarriage of justice, or actual innocence. McKay , 657 F.3d at 1196. The petitioner bears the burden of showing that an exception to the procedural default rule applies. See Sullivan v. Wainwright , 695 F.2d 1306, 1310 (11th Cir. 1983) (noting that the burden of proof was on the petitioner in a habeas corpus proceeding, including to establish cause and prejudice to excuse procedural default).
Pruitt's petition (Doc. 34) and Reply (Doc. 37) can be construed as raising arguments that fall under both of the exceptions to a procedural default. Each exception and Pruitt's ...