United States District Court, E.D. North Carolina, Eastern Division
LOUISE W. FLANAGAN, District Judge.
This matter is before the court on petitioner's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (DE 112). The government has filed a motion to dismiss (DE 116), to which petitioner has responded, including a claim pursuant to United States v. Simmons , 649 F.3d 237 (4th Cir. 2011). The court held this matter in abeyance pending decision in Miller v. United States , 735 F.3d 141 (4th Cir. 2013), and then directed supplemental briefing, which has been received. In this posture, the matter is ripe for ruling. For the reasons stated below, the government's motion will be granted and petitioner's motion will be dismissed.
Following a two day trial, a jury convicted petitioner of one count of possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924. Petitioner was sentenced on April 14, 2010, to a term of imprisonment of 105 months. Petitioner appealed, and the appeals court affirmed the conviction and sentence on September 26, 2011. Petitioner filed the instant motion to vacate on October 1, 2012, alleging numerous claims of error at trial and sentencing, ineffective assistance of counsel, and newly discovered evidence in the form of a statement by petitioner's daughter dated June 18, 2012, as amended September 10, 2012. The government filed a motion to dismiss for failure to state a claim upon which relief can be granted, under Fed.R.Civ.P. 12(b)(6), asserting that petitioner procedurally defaulted on his claims of trial and sentencing error, and that his ineffective assistance of counsel and newly discovered evidence claims are without merit.
Petitioner responded in opposition to the motion to dismiss on December 3, 2012, which response included an additional claim of miscarriage of justice due to application of Simmons to the predicate extortion conviction underlying petitioner's offense. Petitioner filed a supplement on July 8, 2013, suggesting that the court should apply Alleyne v. United States , 133 S.Ct. 2151 (2013), and Descamps v. United States , 133 S.Ct. 2276 (2013) to his case. The court held this matter in abeyance pending decision in Miller v. United States , 735 F.3d 141 (4th Cir. 2013), and then directed supplemental briefing. Petitioner filed a supplemental memorandum on September 10, 2013, in further support of his claims, including excerpts from the record and transcripts. Petitioner filed a supplemental brief and reply brief addressing application of Miller. The government filed a response to the supplemental brief.
A. Standard of Review
Rule 12 of the Rules Governing Section 2255 Proceedings states that, "[t]he Federal Rules of Civil Procedure... to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules." The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted is to eliminate claims that are factually or legally insufficient. Fed.R.Civ.P. 12(b)(6); Ashcroft v. Iqbal , 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). To survive a motion to dismiss, a pleading must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 570). In evaluating whether a claim is stated, "a court accepts all well-pled facts as true and construes these facts in the light most favorable" to the plaintiff, but does not consider "legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. , 591 F.3d 250, 255 (4th Cir. 2009). Nor must the court accept "unwarranted inferences, unreasonable conclusions, or arguments." Id . While pro se complaints should be liberally construed, they are not exempt from the "requirement that a pleading contain more than labels and conclusions.'" Giarratano v. Johnson , 521 F.3d 298, 304 n.5 (4th Cir. 2008) (quoting Twombly , 550 U.S. at 555).
1. Claims Raised on Appeal
Issues litigated on direct appeal are not subject to collateral attack absent an intervening change in the law. See United States v. Roane , 378 F.3d 382, 396 n.7 (4th Cir. 2004) (citing Boeckenhapt v. United States , 537 F.2d 1182, 1183 (4th Cir. 1976)). Plaintiff raises several claims that are barred on this basis. In particular, his challenges to the obstruction of justice enhancement (Ground Two), the upward departure (Ground Three), failure to produce Maria Claudio's Violence Against Women's Act petition (Ground Four), denial of motion to strike testimony of Maria Claudio regarding assault and rape by petitioner and cocking a 9mm handgun (Ground Five), are barred because these claims were raised and rejected on appeal. See United States v. Claudio, 447 Fed.Appx. 456, 458-460 (4th Cir. 2011).
2. Procedurally Defaulted Claims
"Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal." Bousley v. United States , 523 U.S. 614, 621 (1998). Accordingly, under the procedural-default rule, ordinarily, "claims not raised on direct appeal may not be raised on collateral review." Massaro v. United States , 538 U.S. 500, 504 (2003). "A procedural default, however, may be excused in two circumstances: where a person attacking his conviction can establish (1) that he is actually innocent' or (2) cause' for the default and prejudice' resulting therefrom." United States v. Fugit , 703 F.3d 248, 253 (4th Cir. 2012) (quoting Bousley v. United States , 523 U.S. 614, 622 (1998)). In addition, "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro , 538 U.S. at 504.
Petitioner raises several claims that were not raised on appeal: he was not mentally competent to stand trial (Ground Six), violation of speedy trial rights (Ground Seven), invalid arrest warrant (Ground Eight), failure to read Miranda rights (Ground Nine), no probable cause to enter and search his home and to arrest (Ground Ten). These claims are thus procedurally defaulted unless petitioner can demonstrate actual innocence or cause and prejudice.
Petitioner suggests that he has established cause and prejudice due to ineffective assistance of counsel in failing to raise these arguments at trial, among other deficiencies. See Murray v. Carrier , 477 U.S. 478, 488 (1986) ("Ineffective assistance of counsel... is cause for a procedural default."). Petitioner also claims that he is actually innocent of the offense of conviction, both because of Simmons and on the basis of newly discovered evidence. As set forth below, the court finds each of these contentions to be without merit. Accordingly, the court will dismiss these claims (Grounds Six through Ten of the habeas petition) as procedurally defaulted.
3. Simmons claim
Petitioner contends that he is actually innocent of his felon in possession of a firearm conviction because the predicate offense of extortion underlying the conviction was not a felony, in light of the fact that he served only a term of probation. The government contends that petitioner's extortion conviction remains a proper predicate under Simmons, and that the claim therefore must be denied for lack of merit.
Simmons "requires examination of three pieces of evidence: the offense class, the offender's prior record level, and the applicability of the aggravated sentencing range." Simmons 649 F.3d at 247 n. 9. "All three appear prominently on the first page of an offender's state record of conviction." Id . "From this, it is a simple matter to refer to the statutory table provided by the Structured Sentencing Act and compute the applicable maximum punishment." Id.
The parties stipulated at trial that petitioner's extortion offense constituted a predicate offense for purposes of petitioner's felon in possession charge. ...