United States District Court, Middle District of North Carolina
MEMORANDUM OPINION AND ORDER
Thomas D. Schroeder United States District Judge.
Petitioner Tony Anthony Hearne, a federal prisoner, has filed a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Docs. 78, 79.) He has also filed several other pro se motions: for an evidentiary hearing, to appoint an attorney, and for a certificate of appealability (Doc. 93); to amend his § 2255 motion (Doc. 95); and, again, to appoint an attorney (Doc. 96). The Government opposes Hearne’s motions. (Docs. 90, 101.) For the reasons set forth below, the motion to amend will be granted and the remaining motions will be denied.
On June 30, 2003, Hearne was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); one count of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); and one count of possession of counterfeit obligations in violation of 18 U.S.C. § 472. (Doc. 1.) On August 19, 2003, he pleaded guilty to the first and third counts, while the second count was dismissed pursuant to a plea agreement. (Docs. 14, 17.) On November 6, 2003, Hearne was sentenced to 120 months’ imprisonment on Count I and 205 months’ imprisonment on Count III, to run concurrently.
The Fourth Circuit affirmed his sentence. United States v. Hearne, 102 F. App’x 321 (4th Cir. 2004). He then successfully petitioned for certiorari from the U.S. Supreme Court. The Supreme Court vacated his sentence and remanded the case for resentencing in light of new precedent: United States v. Booker, 543 U.S. 220 (2005). See Hearne v. United States, 543 U.S. 1115 (2005). On remand, the Fourth Circuit found reversible error in light of Booker and remanded the case to the district court for resentencing. United States v. Hearne, 163 F. App’x 195 (4th Cir. 2005).
On April 28, 2006, Hearne was resentenced to 120 months’ imprisonment on Count I and 172 months’ imprisonment on Count III, to run concurrently. (Doc. 59.) He again appealed his sentence, and the Fourth Circuit affirmed the judgment of the district court. United States v. Hearne, 290 F. App’x 559 (4th Cir. 2008). On January 12, 2009, the U.S. Supreme Court denied Hearne’s petition for a writ of certiorari. Hearne v. United States, 555 U.S. 1123 (2009). On January 11, 2010, one day before the one-year time limitation in 28 U.S.C. § 2255 elapsed, Hearne filed a § 2255 motion. (Doc. 76.) As he failed to use the proper forms, the U.S. Magistrate Judge allowed him to refile properly within thirty days. (Doc. 77.) He did so (Doc. 78) and filed a supporting brief (Doc. 79).
A. Standard of review
A petitioner collaterally attacking his sentence or conviction must prove by a preponderance of the evidence that “his sentence or conviction was imposed in violation of the Constitution or laws of the United States, . . . that the sentence exceeded the maximum authorized by law, or that the sentence otherwise is subject to collateral attack.” 28 U.S.C. § 2255; see also Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958); Almon v. United States, 302 F. Supp. 2d 575, 579 (D.S.C. 2004). The court construes Hearne’s pro se motions liberally. Fields v. Attorney Gen. of State of Md., 956 F.2d 1290, 1298 n.20 (4th Cir. 1992); Haines v. Kerner, 404 U.S. 519, 520 (1972). The court grants Hearne’s motion to amend his § 2255 motion (Doc. 95) and considers the record supporting the § 2255 motion in its entirety.
B. Section 2255 motion
Hearne challenges his conviction and sentence on eighteen grounds, seventeen of which are in his original motion and one of which was added by amendment. Although he specifies eighteen different grounds, some of the grounds are duplicative. The court has considered the content of each one but, for the sake of clarity, distills them into twelve distinct claims.
1. Ineffective assistance of counsel
In Grounds Two, Four, and Six, Hearne argues that his defense counsel, Eric Placke, an Assistant Federal Public Defender, was ineffective and that a total breakdown in communication between lawyer and client made it impossible for Placke to provide Hearne with adequate representation. (Doc. 78 at 5, 8, 13.) He asserts that he was “misadvised by counsel and coerced under duress” to plead guilty; that Placke made misrepresentations to the court and “induced the District Court to induce Petitioner to plead guilty”; and that Placke refused to challenge his conviction and sentence on certain grounds on appeal. (Id.) Hearne states that he and Placke had an “adversarial relationship,” which resulted in ineffective assistance of counsel. (Id. at 13.) Ineffective assistance of counsel is an appropriate collateral attack under § 2255, and so the court considers Hearne’s claims.
In order to prove ineffective assistance of counsel, a petitioner must establish, first, that his attorney’s performance fell below a reasonable standard for defense attorneys and, second, that he was prejudiced by this performance. See Strickland v. Washington, 466 U.S. 668 (1984). A petitioner is not entitled to an evidentiary hearing on the claim based upon unsupported, conclusory allegations. See Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992) (in order to obtain an evidentiary hearing a habeas petitioner must come forward with some evidence that the claim might have merit), abrog’n on other grounds recog’d by Yeatts v. Angelone, 166 F.3d 255 (4th Cir. 1999).
As to the first Strickland prong, the petitioner bears the burden of affirmatively showing deficient performance. See Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994). A petitioner must show that his counsel’s performance “fell below an objective standard of reasonableness” such that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 688. The U.S. Supreme Court has recognized that, in order to avoid “the distorting effects of hindsight,” courts should employ “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
To establish prejudice, the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694. “In assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently.” Harrington v. Richter, 131 S. Ct. 770, 791 (2011). Instead, “[t]he likelihood of a different result must be substantial, not just conceivable.” Id. at 792.
“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697. Because Hearne fails to show that Placke’s performance was deficient, the court will not address whether he was prejudiced by Placke’s representation.
First, Hearne accuses Placke of “coercing” him into pleading guilty. (Doc. 78 at 5.) He claims to have maintained his innocence as to Count III (possession of counterfeit obligations). (Id.) He states that he “did not knowingly, voluntarily agree [to plead guilty] and had no understanding of the nature and consequences of the charges, but was told by counsel [Count III] would have no effect on the firearm charge in [Count I].” (Id. at 8 (internal parentheses omitted).)
Hearne’s current assertions, however, directly contradict his sworn testimony during his Rule 11 colloquy. As to the “nature and consequences” of the charges, the court specifically informed him of the maximum penalties for each of the two counts to which he was pleading and the elements of each charge. (Aug. 19 Tr. at 22-23, 25-27.) He indicated he understood the elements that the Government would have to prove beyond a reasonable doubt at trial and the possible penalties, including a twenty-year prison sentence. (Id.) Hearne also confirmed his guilt and the voluntariness of his plea:
[Court:] Mr. Hearne, the Court will not accept the plea of guilty from you for either one of these counts if you contend in any way that you are not guilty. So, I ask you at this point, are you in fact guilty of the charges contained in Count 1?
[Def’t:] Yes, sir.
[Court:] Are you in fact guilty of the charges contained in Count 3?
[Def’t:] Yes, sir.
[Court:] Has anyone made any threats or promises to get you to do anything that you’re doing here today?
[Def’t:] No, sir.
(Id. at 28.) Later, during his sentencing allocution, Hearne again unequivocally admitted guilt to the charges: “I would just like to say to Your Honor that I take full responsibility for the Ruger Blackhawk I had and the counterfeit money.” (Nov. 6 Tr. at 47.)
A defendant’s “[s]olemn declarations in open court [as to a plea or plea agreement] carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). That presumption presents “a formidable barrier in any subsequent collateral proceedings.” Id. This is so “because courts must be able to rely on the defendant’s statements made under oath during a properly conducted Rule 11 plea colloquy.” United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005). “Thus, in the absence of extraordinary circumstances, allegations in a § 2255 motion that directly contradict the petitioner’s sworn statements made during a Rule 11 colloquy are always ‘palpably incredible’ and ‘patently frivolous or false,’” and may be summarily dismissed without an evidentiary hearing. Id. (quoting Blackledge, 431 U.S. at 76) (internal citations omitted).
This first part of Hearne’s ineffective assistance claim “necessarily relies on allegations that contradict [his] sworn statements,” and he does not present any extraordinary circumstances warranting an evidentiary hearing. Id. at 222; cf. United States v. White, 366 F.3d 291 (4th Cir. 2004) (holding that admittedly ineffective representation, which the Government conceded rendered the guilty plea involuntary, was an extraordinary circumstance); Fontaine v. United States, 411 U.S. 213 (1973) (holding that district court should have had an evidentiary hearing when the petitioner introduced documentary evidence supporting his claim that he was severely ill, both physically and mentally, and uncounseled at the time of his Rule 11 colloquy). The claim that Placke coerced him into pleading guilty, therefore, is “palpably incredible” and must be dismissed.
Second, Hearne claims that Placke was ineffective because he refused to appeal the “grouping” of his two counts of conviction for sentencing purposes. (Doc. 78 at 8, 13.) A defense counsel is permitted to make “reasonable strategic decision[s],” United States v. Mayberry, 341 F. App’x 859, 862 (4th Cir. 2009), however, especially when “demonstrat[ing] his sound evaluation of [the] likelihood of success,” United States v. Daniel, 3 F.3d 775, 779 (4th Cir. 1993) (defense counsel not ineffective even though he failed to seek a judgment of acquittal). Cf. United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1993) (defense counsel not ineffective even when he miscalculated the likelihood of success of challenging sentencing enhancements). Placke pursued other grounds on appeal and successfully petitioned for resentencing, which resulted in a 33-month reduction in Hearne’s sentence. On Hearne’s second appeal, the ...