Butler v. United States, Nos. 4:10cv70264, 4:09cv74, 2010 WL 5070776 (D.S.C. Dec. 7, 2010):
The Court summarizes the applicable burden of proof and standard of review in a motion under 28 U.S.C. § 2255:
Generally, 28 U.S.C. § 2255 requires Petitioner to prove by a preponderance of the evidence 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." This is the proof needed to allege a constitutional error. "The scope of review of non-constitutional error is more limited than that of constitutional error; a non-constitutional error does not provide a basis for collateral attack unless it involves 'a fundamental defect which inherently results in a complete miscarriage of justice,’ or is ‘inconsistent with the rudimentary demands of fair procedure.'" Leano v. U.S., 334 F.Supp.2d 885, 890 (D.S.C.2004) (quoting United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir.1999)).