United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM AND RECOMMENDATION
WILLIAM A. WEBB, Magistrate Judge.
This cause comes before the Court upon Petitioner Pernell Hooper's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("motion to vacate"). DE-29. The government seeks dismissal, or in the alternative, summary judgment. DE-34. Petitioner filed a response, DE-37, and the government replied. DE-38. Accordingly, the matter is ripe for adjudication. Pursuant to 28 U.S.C. § 636(b)(1), this matter is before the undersigned for the entry of a memorandum and recommendation. For the reasons set forth herein, it is RECOMMENDED that Petitioner's motion to vacate (DE-29, 32) be DENIED, and that the Government's motion to dismiss (DE-34) be GRANTED.
Petitioner was indicted on February 28, 2012 on five charges stemming from social security fraud from 2007 through 2011. DE-1. On May 16, 2012, he pled guilty to theft of government property, in violation of 18 U.S.C. § 641 (Count Two), and aggravated identity theft, in violation of 18 U.S.C. § 1028A (Count Three), pursuant to a written plea agreement. DE-15, 17. The plea agreement included an appeal waiver, stating that Petitioner agreed to:
waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea.
Plea Agreement, DE-17 at ¶ 2(c). Petitioner also agreed to "make restitution to the Social Security Administration in the amount of $97, 345.00." Id. ¶ 2(b). For its part, the government agreed to dismiss Counts One, Four, and Five of the indictment. Id. ¶ 4; see also DE-1.
Petitioner was sentenced on August 9, 2012 to a total term of imprisonment of 29 months: 5 months on Count Two and 24 months consecutive on Count Three, along with an additional 5 month term of home confinement. DE-27. The Court also, pursuant to the plea agreement, entered an order of forfeiture in the amount of $97, 345.00. DE-24. Petitioner did not appeal his conviction or sentence to the Fourth Circuit, but filed the instant motion to vacate on May 14, 2013.
II. LEGAL STANDARDS
A. Summary Judgment
The government has filed a motion to dismiss, or in the alternative, for summary judgment. Because the undersigned will nominally consider materials attached by Petitioner and the government to their filings, summary judgment is the appropriate vehicle for disposition of this matter. See Fed.R.Civ.P. 12(d). Summary judgment is appropriate where "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); see also Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986) (holding that a factual dispute is "material" only if it might affect the outcome of the suit and "genuine" only if there is sufficient evidence for a reasonable jury to find for the non-moving party). The party seeking summary judgment bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party then must affirmatively demonstrate with specific evidence that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Summary judgment is not a vehicle for the court to weigh the evidence and determine the truth of the matter, but to determine whether a genuine issue exists for trial. Anderson, 477 U.S. at 249. In making this determination, the court must view the inferences drawn from the underlying facts in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Only disputes between the parties over facts that might affect the outcome of the case properly preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. Accordingly, the court must examine the materiality and the genuineness of the alleged fact issues in ruling on such motion. Id. at 248-49.
"A document filed pro se is to be liberally construed." Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002). Nonetheless,
[w]hile pro se complaints may represent the work of an untutored hand requiring special judicial solicitude, ' a district court is not required to recognize obscure or extravagant claims defying the most concerted efforts to unravel them'.... The special judicial solicitude' with which a district court should view such pro se complaints does not transformer the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed.
Weller v. Dep't of Soc. Services for City of Baltimore,
901 F.2d 387, 391 (4th Cir. 1990) (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. ...