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 under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [Doc. 1]; Petitioner's Motion for Summary Judgment [Doc. 4]; and the Government's Response to Petitioner's Motion to Vacate [Doc. 13].
I. PROCEDURAL BACKGROUND
Petitioner Gordon Casper was indicted by the Grand Jury for the Western District of North Carolina on December 3, 2008, and charged with two counts of being a felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g). [Criminal Case No. 1:08-cr-00127-MR, Doc. 1: Indictment]. On February 6, 2009, the parties entered into a written plea agreement. [ Id., Doc. 8: Plea Agreement]. Thereafter, on February 13, 2009, pursuant to that agreement Petitioner entered a guilty plea to Count One before U.S. Magistrate Judge Howell. [ Id., Doc. 10: Acceptance and Entry of Guilty Plea]. On January 21, 2010, this Court sentenced Petitioner to 180 months' imprisonment on Count One, to be followed by three years' supervised release. [ Id., Doc. 21: Judgment]. At sentencing, Petitioner was designated as an armed career criminal, and he was, therefore, subject to a mandatory minimum sentence of 180 months under 18 U.S.C. § 924(e). See [ Id., Doc. 22: Statement of Reasons]. Petitioner filed an appeal, which appeal was dismissed by the Fourth Circuit on November 9, 2010. United States v. Casper, No. 10-4116 (4th Cir. Nov. 9, 2010). The Supreme Court subsequently denied Petitioner's petition for writ of certiorari on April 4, 2011. Casper v. United States , 131 S.Ct. 1837 (2011).
On March 22, 2012, Petitioner filed the pending motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, followed on April 4, 2012, by a motion to amend. [Docs. 1; 2]. Pursuant to an Order entered by this Court on May 23, 2012, the Court granted Petitioner's motion to amend and directed the Government to respond to Petitioner's claims. [Doc. 3]. On September 14, 2012, after receiving several extensions of time, the Government filed its Response to the motion to vacate. [Doc. 13].
II. FACTUAL BACKGROUND
A. Offense Conduct
1. April 13, 2008 - Sig Sauer.357 caliber handgun
The charges against Petitioner arose from a robbery at the Ridgeview Presbyterian Church in Bakersville, North Carolina, on April 13, 2008, during which three masked men, brandishing handguns, entered the church during the morning worship service and robbed the parishioners by taking money, cell phones, and keys. [Criminal Case No. 1:08-cr-00127-MR, Doc. 11 at ¶ 7: PSR]. During the course of the robbery, one of the robbers accidentally squeezed the trigger of his handgun, firing a round of ammunition into the floor of the church near a young girl. [Id.]. One parishioner kept his cell phone and called 911. [Id.]. Later, that day, deputies of the Mitchell County Sheriff's Department arrested the three suspects, Josiah Deyton, Andrew Deyton, and Jonathon Koniak. [Id. at ¶ 8]. Incident to arrest, officers searched the suspects' vehicle and found two handguns, one of which was identified as a Sig Sauer.357 caliber pistol, serial number SA4110639. [Id.]. Based on subsequent analysis of the shell casing recovered from the church floor, the Sig Sauer.357 caliber pistol was determined to be the same weapon that was fired inside the church during the robbery. [Id.].
After his arrest, Josiah Deyton admitted to investigators that he had participated in the armed robbery of the church; that he had been at PC Solutions in Spruce Pine, North Carolina, on the morning of the robbery; that PC Solutions was owned by Petitioner; and that Deyton had taken Petitioner's.357 caliber handgun from PC Solutions without Petitioner's knowledge. [Id. at ¶ 9]. Thereafter, Special Agent C.E. Vines of the North Carolina State Bureau of Investigation ("SBI") contacted Petitioner by telephone and asked Petitioner if he knew Josiah Deyton and whether Petitioner owned a.357 handgun. Petitioner responded that he knew Joshua Deyton and that he (Petitioner) owned a.357 handgun, which he kept at his business. [Id. at ¶ 10]. Agent Vines then informed Petitioner that the gun had possibly been stolen and used in the commission of an armed robbery. [Id.]. Petitioner responded that he would check his business and verify whether the gun belonged to him. [Id.]. Later that day, Petitioner contacted Agent Vines and verified that the.357 handgun was a gun that belonged to Petitioner. [Id.]. The Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") subsequently determined that the.357 caliber handgun, serial number SA4110639, used during the April 13, 2008, church robbery and owned by Petitioner, had been manufactured in Switzerland and that Petitioner had purchased the handgun from an individual gun owner in North Carolina in May 2006. [Id. at ¶ 11].
2. July 7, 2008 - Glock Model 19, 9mm semi-automatic pistol
On July 7, 2008, the Spruce Pine Police Department ("SPPD") was dispatched to Petitioner's business, PC Solutions, 16 Fairway Lane, Spruce Pine, North Carolina, to investigate a breaking and entering/larceny that had occurred on July 6, 2008. [Id. at ¶ 12]. While processing the crime scene, officers observed pictures of Petitioner on a hallway door showing several poses of Petitioner holding a black semi-automatic handgun. [Id.]. Officers also observed a marijuana pipe located behind the door and a semi-automatic handgun/holster attached to the underside of a desk. [Id.]. During this time, Petitioner asked one of the officers when his.357 caliber handgun would be returned to him. [Id.]. After processing the scene at PC Solutions, SPPD Detective Stacy Hughes ran a computerized criminal records check from the State of Florida and learned that Petitioner had at least one prior felony conviction. [Id. at ¶ 13]. The records check also showed that Petitioner had Florida convictions for dealing in stolen property, shooting at/within a building, arson, aggravated assault, and burglary. [Id.].
The next day, July 8, 2008, Detective Hughes applied for, received, and executed a state search warrant at PC Solutions. [Id. at ¶ 14]. During the execution of the search warrant, officers found and seized a large variety of ammunition, a Glock Model 19, 9mm semi-automatic pistol, serial number GGC381, a marijuana pipe with residue, metal tubes which field tested positively for cocaine, and two 15mg tablets of oxycodone. [Id.]. Petitioner was then arrested and charged with possession of a firearm by a felon and possession of marijuana and cocaine, which charges were subsequently dismissed by the State of North Carolina in favor of federal prosecution. [Id.]. ATF later determined that the Glock Model 19, 9mm semi-automatic pistol, had been manufactured in Austria, that Petitioner had traded a Sig Sauer P220 handgun for the 9mm semi-automatic pistol in 2005 or 2006, and that the transaction had occurred at Petitioner's place of business, PC Solutions. [Id. at ¶ 15]. Finally, on November 18, 2008, ATF contacted the Florida Office of Executive Clemency concerning a pardon or relief of disability for Petitioner concerning his prior Florida convictions. [Id. at ¶ 16]. A search of the records confirmed that Petitioner had not received a pardon or clemency from the Governor of Florida. [Id.]. Thereafter, on December 3, 2008, Petitioner was indicted by the Grand Jury for the Western District of North Carolina and charged with two counts of being a felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g). [ Id., Doc. 1].
B. Guilty Plea
On February 6, 2009, Petitioner entered into a plea agreement with the Government, agreeing to plead guilty to one felon-in-possession count in exchange for which the Government agreed to dismiss the remaining count against Petitioner. [ Id., Doc. 8: Plea Agreement]. Pertinent to Petitioner's claims herein, the agreement provided that in exchange for "the concessions made by the United States, " Petitioner waived his "rights to contest the conviction and/or the sentence except for (1) claims of ineffective assistance of counsel; [or] (2) prosecutorial misconduct." [Id. at ¶ 19].
A week after the parties filed the plea agreement, this Court, Magistrate Judge Dennis L. Howell, presiding, conducted Petitioner's plea colloquy pursuant to Federal Rule of Criminal Procedure 11. See [ Id., Doc. 35 at 1-25: Transcript of Rule 11 Hearing]. During the colloquy, Judge Howell recited the charge and the elements of the offense to which Petitioner was pleading guilty and the mandatory minimum and maximum penalty applicable to the charge, and Petitioner acknowledged that he understood the charge against him and the maximum penalties he faced. [Id. at 14-16]. Petitioner also acknowledged that he understood that the applicable Sentencing Guidelines range of imprisonment would not be calculated until after the presentence report ("PSR") had been completed by the probation office and that he would be bound by his plea, even if the sentence was more severe than he expected. [Id. at 17-19].
Petitioner then affirmed that he was, in fact, guilty of the charge to which he was pleading guilty. [Id. at 21]. Government counsel recited the terms of the plea agreement, and Petitioner affirmed his understanding of, and agreement with, those terms. [Id. at 22]. Specifically, Government counsel explained that "in paragraph 19, the defendant gives up his right to appeal or otherwise challenge his sentence or his conviction ...