United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. 2255 [Doc. 1], as amended [Docs. 3, 4]; the Government's Responses [Docs. 9, 26]; and the Government's Motion for Leave to File Out of Time [Doc. 27]. For the reasons that follow, Petitioner's amended motion to vacate is denied and dismissed.
I. FACTUAL BACKGROUND
On April 7, 2009, Petitioner Phillip Eugene Hill was indicted, along with nine co-defendants, by the Grand Jury for the Western District of North Carolina and charged with conspiring to possess with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and with using a communication facility in committing and facilitating the commission of the conspiracy, in violation of 21 U.S.C. § 843(b). [Crim. Case No. 1:09-cr-00023-MR-DLH-6, Doc. 1: Indictment]. Petitioner subsequently entered into a Plea Agreement with the Government, whereby Petitioner agreed to plead guilty to the conspiracy offense, and the Government agreed to move to dismiss the communications-facility offense. [ Id., Doc. 144: Plea Agreement]. In the Plea Agreement, Petitioner acknowledged that he faced a statutory mandatory minimum of 10 years and that if the Government filed notice of one or more prior felony drug offenses, the statutory mandatory minimum could increase to 20 years or life in prison. [Id. at 1]. Petitioner also acknowledged in the Plea Agreement that the Court would ultimately determine his sentence; that any estimate of his sentence from any source, including defense counsel, was a prediction and not a promise; that this Court had "the final discretion to impose any sentence up to the statutory maximum for each count"; and that he understood that he "may not withdraw the plea as a result of the sentence imposed." [Id. at 2].
With respect to the career offender sentence enhancement, Petitioner acknowledged in the Plea Agreement that "[n]otwithstanding any recommendations in the Plea Agreement as to the offense level, " if the probation officer determined that the career-offender guideline applied, "such provision may be used in determining the sentence." [Id. at 3]. On June 18, 2009, Magistrate Judge Dennis L. Howell conducted a plea hearing and colloquy pursuant to Federal Rule of Criminal Procedure 11 and found Petitioner's plea to have been knowingly and voluntarily entered. [ Id., Doc. 147: Acceptance and Entry of Guilty Plea]. During the plea hearing, Petitioner acknowledged that he had reviewed the Indictment against him, as well as the Plea Agreement, stating that he had reviewed the Plea Agreement five times and that he understood it. [ Id., Doc. 304 at 8-9: Plea Hrg. Tr.]. Petitioner reported to Judge Howell that he understood the charge to which he was pleading guilty and that he was, in fact, guilty of the offense. [Id. at 10; 15]. Petitioner also stated that he understood the maximum and minimum penalties that applied to his offense, that he understood how the Sentencing Guidelines might apply to his case, and that he understood that if the sentence imposed was more severe than he expected, he would "still be bound by [his] plea and have no right to withdraw the plea of guilty." [Id. at 11-14].
Petitioner's trial counsel, Derrick Bailey, also represented during the hearing that he had reviewed each of the terms of the Plea Agreement with Petitioner and was satisfied that Petitioner understood them. Finally, Petitioner stated that he was "entirely satisfied" with his attorney. [Id. at 18]. While Petitioner initially responded that he had not reviewed the Sentencing Guidelines and how they might apply to his case with his counsel, he and his counsel later clarified during the hearing that they had, in fact, reviewed the Guidelines several times prior to the hearing. [Id. at 19-21].
Before sentencing, the probation officer submitted a Presentence Report (PSR), which report was subsequently revised. [ Id., Docs. 214, 226, 245: PSR]. The PSR stated that Petitioner qualified as a career offender under Sentencing Guidelines § 4B1.1 based, in part, on his prior state court felony for the "crime of violence" of fleeing to elude arrest with a motor vehicle, for which Petitioner received a sentence of ten to twelve months' imprisonment. [ Id., Doc. 245 at 7, 12].
In response to the various drafts of the PSR, Petitioner filed objections, and the Government filed a response opposing Petitioner's objections and requesting that, in the event the sentencing court should sustain Petitioner's objections and not treat him as a career offender, the Court should consider departing upward on the grounds that Petitioner was a "de facto" career offender. [ Id., Doc. 263 at 3-5: Gov't Sentencing Mem.]. Petitioner also sought before his sentencing hearing to have his trial counsel removed, but when Judge Howell conducted a hearing to adjudicate that motion, Petitioner withdrew his motion, stating that he wanted to keep Mr. Bailey as his trial counsel. [ Id., Doc. 307 at 2-3: Hrg. Tr.].
This Court conducted Petitioner's sentencing hearing on May 21, 2010. At the commencement of the hearing, Petitioner confirmed that he wanted to plead guilty to the drug conspiracy offense and that his answers to Judge Howell's questions during the plea hearing were true and correct. [ Id., Doc. 308 at 4-5: Sentencing Hrg. Tr.]. Petitioner's trial counsel confirmed that Petitioner understood the questions that were posed to him during that hearing and that he was pleading guilty knowingly and voluntarily. [Id.]. In response to this Court's questions, Petitioner affirmed that he had reviewed the PSR with his counsel and that he understood it, and Mr. Bailey affirmed likewise that he had reviewed the PSR with Petitioner and was satisfied that he understood its contents. [Id. at 7].
The Court then overruled Petitioner's objections, including those objections as to his classification as a career offender. Based on a total offense level of 34 and a criminal history category of VI, the Court calculated a pre-departure Sentencing Guidelines range of imprisonment of between 262 and 327 months. [Id. at 9; 21; 23]. The Court then granted the Government's motion for a downward departure under Sentencing Guidelines § 5K1.1, resulting in an advisory Sentencing Guidelines range of 210 to 262 months' imprisonment based on a final offense level of 32 and a criminal history category of VI. [Id. at 24-25]. After hearing from the parties concerning sentencing, the Court sentenced Petitioner to 210 months' imprisonment. [Id. at 32].
Petitioner appealed, arguing that this Court erred in finding that Petitioner was a career offender because the Government failed to file a notice of enhanced penalties under 21 U.S.C. § 851 and that trial counsel was ineffective for failing to challenge the career-offender enhancement on that basis. The Fourth Circuit affirmed this Court's judgment on April 11, 2011, dismissing Petitioner's appeal in part and affirming on the ineffective assistance of counsel claim, finding that counsel's ineffectiveness did not conclusively appear on the face of the record. See United States v. Hill, 422 F.Appx. 297 (4th Cir. 2011).
Petitioner filed this present motion to vacate on July 11, 2011, and amendments thereto on August 9, 2011 and October 17, 2011. [Docs. 1, 3, 4]. In his motion to vacate, as amended, Petitioner contends that: (1) he should not have been designated and sentenced as a career offender in light of the Fourth Circuit's en banc decision in United States v. Simmons , 649 F.3d 237 (4th Cir. 2011), because his underlying conviction for "fleeing to elude" was not punishable by more than one year in prison; (2) trial counsel rendered ineffective assistance of counsel by failing to object to the application of the career offender enhancement on the basis that the Government "changed the conditions of the already entered into plea agreement and relied on prior convictions to sentence [Petitioner] as a career offender without notice of such"; (3) Petitioner's advisory Guidelines range was miscalculated because it failed to account for Petitioner's participation in the BRIDGE program; and (4) the Government and the Court colluded to deceive Petitioner into pleading guilty on terms that were different from what he understood the terms to be when he entered his guilty plea.
II. STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings" in order to determine whether a petitioner is entitled to any relief. After having considered the record in this matter, the Court finds that this matter can be ...