United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER comes before the Court on consideration of the Petitioner's Motion to Vacate, Set Aside or Correct Sentence, filed pursuant to 28 U.S.C. § 2255 [Doc. 1]; Petitioner's Motion to Amend his § 2255 Motion [Doc. 8]; and Respondent's Motion for Summary Judgment [Doc. 5]. For the reasons that follow, Respondent's Motion for Summary Judgment will be granted, and Petitioner's § 2255 motion, as amended, will be denied and dismissed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was charged in a Bill of Indictment returned by the Grand Jury in this District with one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). [Criminal Case No. 1:08-cr-00056-MR, Doc. 1: Indictment]. After being appointed counsel, Petitioner entered into a written plea agreement with the Government. [Id., Doc. 12: Plea Agreement]. In the plea agreement, Petitioner admitted that he was in fact guilty of the § 922(g) offense. He further acknowledged that he was aware that he faced a maximum sentence of ten years in prison, except that if it was later determined that he had three qualifying convictions under 18 U.S.C. § 924(e)(1), then he could face a maximum sentence of life imprisonment and a mandatory minimum sentence of fifteen years' imprisonment. Petitioner also acknowledged in the agreement that "the Court has not yet determined the sentence, that any estimate from any source, including defense counsel, of the likely sentence is a prediction rather than a promise, and that the Court has the final discretion to impose any sentence up to the statutory maximum for each count." [Id. at 2, ¶ 4 (emphasis added)]. The parties agreed to recommend that the Court find that the base offense level was 20, with an additional four-level increase for the use of a firearm during another felony offense, but Petitioner acknowledged his understanding that no such recommendations were binding on the Court. [Id.].
After the plea agreement was filed, Petitioner appeared before U.S. Magistrate Judge Dennis L. Howell for a Rule 11 hearing. Judge Howell ascertained that although Petitioner had previously been treated for mental illness and substance abuse, Petitioner's mind was clear, and that he understood that he was there to enter a guilty plea that could not later be withdrawn. The Court informed Petitioner that if he had three previous convictions for violent felonies or serious drug offenses, the maximum punishment he faced was life imprisonment, that there would be a fifteen-year mandatory minimum, and that such a sentence would be consecutive to any other sentence. Petitioner testified that he understood how the sentencing guidelines may apply in his case; that the Court would not be bound by the sentencing guidelines but, nonetheless, must consult those guidelines and take them into account when sentencing; that the sentence imposed would be within the statutory limits and in the Court's sound discretion, and could be greater or less than the sentence as provided for by the Guidelines; and that in some circumstances he may receive a sentence that is either higher or lower than that called for by the Guidelines. Petitioner also acknowledged that if his sentence were more severe than he expected, or if the Court did not accept the Government's sentencing recommendation, he would still be bound by his plea. He further affirmed that his plea was voluntary and not the result of any coercion, threats, or promises other than those contained in the written plea agreement.
After the Government summarized the terms of the plea agreement, Judge Howell asked Petitioner if he understood the terms of the plea agreement, and he said that he did. The Court discussed with Petitioner his right to appeal or otherwise challenge his conviction or sentence, and ascertained that Petitioner was knowingly and willingly accepting limitations on those rights except as to claims of ineffective assistance of counsel or prosecutorial misconduct.
Petitioner also testified that he had been given ample time to discuss any possible defenses to these charges with his attorney, that he was "entirely satisfied" with the services of his attorney, that he knew and fully understood what he was doing, that he had heard and understood all parts of the Rule 11 hearing, and that he wanted the Court to accept his guilty plea.
Finding "that defendant's plea is knowingly and voluntarily made and that the defendant understands the charges, the potential penalties, and the consequences of the plea, " the Court accepted Petitioner's guilty plea. [Id., Doc. 13: Acceptance and Entry of Guilty Plea; Doc. 30: Plea and Rule 11 Hearing Tr.].
A presentence report (PSR) was prepared in advance of Petitioner's sentencing hearing and a summary of the events that culminated in Petitioner's indictment on the § 922(g) charged was provided. The probation officer noted that the parties had agreed to recommend that Petitioner qualify for a base offense level of 20, but observed that Petitioner had no "scoreable" crimes of violence or controlled substance offenses,  and therefore found that Petitioner should qualify for a base offense level of 14. After finding that the four-level enhancement referenced in the plea agreement was appropriate, the probation officer applied the cross-reference pursuant to U.S.S.G. §§ 2K2.1(c)(1)(A) and 2X1.1. The probation officer found that the attempted murder guideline found in § 2A2.1 was applicable because Petitioner assaulted two victims with intent to commit murder while committing the § 922(g) offense, thus making the base offense level 33. Because the victims sustained serious bodily injuries, the two-point enhancement of U.S.S.G. § 2A2.1(b)(1)(B) was added. After finding that Petitioner qualified for a three-level reduction for acceptance of responsibility, the PSR recommended a total offense level of 32. [Criminal Case No. 1:08-cr-00056-MR, Doc. 16: PSR at ¶¶ 25-27].
In addition, it was recommended in the PSR that the Court find that Petitioner qualified as an armed career criminal pursuant to 18 U.S.C § 924(e) based on four prior state convictions. The PSR noted that the statutory term of no less than fifteen years' imprisonment under 18 U.S.C. §§ 922(g)(1) and 924(e) for armed career criminals would thus apply. Based on a total offense level of 32 and a criminal history category of VI, the PSR recommended a Guidelines range for imprisonment to be 210-262 months. [Id., Doc. 16: PSR at ¶¶ 90-91].
The PSR also addressed Petitioner's history of mental health and substance abuse issues. Records were obtained from several treatment facilities, which cover a span from 1985 to 2004, and detail multiple instances of in-patient and out-patient treatment that Petitioner received for mental health and substance abuse issues. According to these records, Petitioner was diagnosed and treated for, among other things, alcohol dependence, cocaine and marijuana abuse, major depression, congruent psychotic features and psychosis. The most recent information provided that Petitioner was diagnosed in 2004 with alcohol dependence, schizoaffective disorder, and personality disorder NOS. [Id., Doc. 16: PSR at ¶¶ 81-82].
Petitioner's counsel filed objections to the PSR. In his first objection, Petitioner challenged the offense conduct which related to his state charges, arguing that he never attempted to murder either victim, and that he did not return to his house to retrieve the Taurus.357 revolver prior to shooting the victims. In response to this objection, the probation officer recommended that no change in the PSR was necessary based on Petitioner's objection because the description of the offense conduct was obtained from law enforcement records which included several victim statements and eyewitness accounts. In his second objection, Petitioner challenged the calculation of his base offense level, arguing that it should have been based on the offense level to which the parties jointly agreed in the plea agreement. Again, the probation officer found that no change was necessary, reasoning that the plea agreement did not limit the application of the cross reference. [Id. at 22-23].
On June 2, 2009, Petitioner appeared with counsel for his sentencing hearing. Subject to the objections previously filed by counsel, Petitioner and the Government stipulated that there was a factual basis to support his plea of guilty and that the Court could accept the evidence contained in the PSR as establishing the factual basis for the plea.
Petitioner's counsel reiterated his objections to the offense conduct related to the 2007 shooting which led to the state charges and his federal indictment on the § 922(g) charge. Petitioner's counsel also addressed Petitioner's history of mental health issues and admitted that he had previously had concerns about Petitioner's competency to proceed. After discussing these concerns with Petitioner during the course of his representation, however, counsel "concluded that [Petitioner] understands what's going on; he understands the charges; he understands what the Guidelines have said; he understands the role of the Court; the role of the prosecuting counsel; [counsel's role and the] probation officer's role. So it did not appear as though there was an issue that I needed to raise with the Court about his competency to proceed." [Id., Doc. 27: Sentencing Tr. at 9].
The Court overruled Petitioner's objections to the offense conduct and found that the PSR correctly calculated the Guidelines range to be 210 to 262 months' imprisonment. Prior to the Court pronouncing sentence, Petitioner's counsel addressed the Court and again called attention to Petitioner's long-running history of mental health issues, and asked the Court to sentence Petitioner to the statutory minimum of fifteen years rather than a Guidelines sentence. The Court sentenced Petitioner to a term of 220 months' imprisonment. [Id., Doc. 18: Judgment in a Criminal Case].
Thereafter, Petitioner appealed to the United States Court of Appeals for the Fourth Circuit. Petitioner's appellate counsel filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), contending that there were no meritorious issues for appeal. In a pro se supplemental brief, Petitioner argued that counsel ineffectively represented him by telling him that his plea agreement was based on his being sentenced at offense level 21. Petitioner also argued that counsel never informed him "that the judge had discretion to deviate from what had been promised him." [Doc. 4-2 at 4]. He further claimed that counsel had refused to explain the plea agreement, simply telling him to answer in the affirmative when entering his plea, and that counsel had assured him that in signing his plea agreement, he would be sentenced at level 21." [Id.]. He also claimed that he asked counsel to request a psychological evaluation, but that counsel refused to do so. Petitioner ...