United States District Court, W.D. North Carolina, Statesville Division
RICHARD L. VOORHEES, District Judge.
THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, (Doc. No. 1), on the Government's Response to Petitioner's Motion to Vacate, (Doc. No. 5), and on Petitioner's Motion for an Order to Compel Counsel for Respondent to File an Answer or Responsive Pleading to 2255 Motion, (Doc. No. 6).
1. Petitioner commits a series of armed robberies, along with several other individuals, at businesses located in North Carolina.
On October 19, 2009, Petitioner and his partner, Stephon Heller, entered a Family Dollar store in Statesville, North Carolina. (Criminal Case No. 5:11-cr-11, Doc. No. 74 at 8: PSR). Armed with handguns, Petitioner and Heller held an employee at gunpoint, while demanding money from the cash registers and safe. (Id. at 8). Throughout the encounter, Petitioner and Heller shouted threats at the employee, stating that they would "shoot" him if he did not comply. (Id.). As Petitioner and Heller were leaving the store, one of the men struck the employee in the head with the gun. (Id.). In total, the men stole nearly $3, 000 during the robbery. (Id.).
On November 10, 2009, Petitioner attempted to rob a Subway fast food restaurant in Statesville. (Id.). Petitioner entered the restaurant armed with a handgun. (Id.). When one of the customers said something about calling the police, Petitioner struck the customer in the face and fled. (Id.). Petitioner joined two other individuals, Frances Shuart and David Weaver, who had driven him to the scene and were waiting for him after the attempted robbery. (Id.). Later that month, on November 24, 2009, Petitioner robbed the Sleep Inn in Statesville. (Id. at 9). Petitioner threatened two of the employees with a gun, demanding money from the cash register and stealing the employees' purses. (Id.). When one of the employees resisted, Petitioner threatened her, stating, "It's not smart to get smart with me because I can just shoot you." (Id.). In total, Petitioner stole $345 from the cash register and $64 from the two employees. (Id.). Weaver and Shuart, who previously worked at the Sleep Inn before being fired, drove Petitioner to the hotel and waited for him afterward. (Id.). One week later, on December 1, 2009, Petitioner and another individual, Derrick Wallace, robbed the Yogi Foods store in Statesville. (Id.). Armed with a gun, Petitioner and Wallace stole over $1, 000 and a carton of cigarettes. (Id.). As in several of the prior robberies, Weaver and Shuart drove Petitioner and his partner to and from the robbery. (Id.).
Shortly thereafter, on December 8, 2009, Petitioner robbed a Quizno's restaurant in Statesville. (Id. at 10). Petitioner pointed a gun at the two employees and demanded money from the cash register. (Id.). Petitioner then ordered the employees to the back of the restaurant and demanded that they open the safe. (Id.). When the employees responded that they could not open the safe, Petitioner demanded their wallet and purse. (Id.). After threatening to kill the employees if they attempted to leave, Petitioner turned his back for a moment, at which point the employees fled out the back door. (Id.). Petitioner attempted to pursue the employees, who held the door closed so that Petitioner could not get out. (Id.). Petitioner ultimately fled, having stolen just over $150. (Id.). Once again, Weaver and Shuart drove the getaway car. (Id.).
Finally, on January 12, 2010, Petitioner entered a McDonald's fast food restaurant in Hickory, North Carolina, armed with a pistol. (Id. at 6). After entering the McDonald's, Petitioner brandished the gun and ordered all of the employees and customers to the back of the restaurant. (Id.). Petitioner grabbed the money from the cash registers and demanded that the manager open the safe, threatening to kill someone if she did not comply. (Id.). The manager opened the outer safe but was unable to unlock the inner safe because it was on a time lock. (Id.). Petitioner then stole cash and a cell phone from one of the customers before fleeing. (Id.). This time officers encountered Petitioner after the robbery parked in a car a quarter mile from the McDonald's. (Id.). Petitioner was joined in the car by Shuart and Weaver. (Id.). After receiving consent to search the vehicle, officers found a loaded pistol, money bag, cell phone, and various articles of clothing. (Id.). Officers confirmed that the cell phone matched the phone Petitioner stole from the customer at the McDonald's. (Id.). Through subsequent investigation and interviews with his coconspirators, officers connected Petitioner to the prior armed robberies. (Id. at 7).
2. Petitioner pleads guilty and, because Petitioner's first lawyer erred in his prediction regarding the guidelines calculation, this Court appoints a second lawyer to ensure that Petitioner's plea is knowing and voluntary.
On February 15, 2011, the grand jury for the Western District of North Carolina charged Petitioner with one count of conspiracy to obstruct, delay, and affect commerce by robbing a business engaged in interstate commerce through the use of actual and threatened force, violence, and fear of injury, in violation of the Hobbs Act, 18 U.S.C. § 1951; six substantive Hobbs Act robbery counts and aiding and abetting the same, corresponding to the six robberies, in violation of 18 U.S.C. §§ 1951(b)(3) and 2; five counts of using and carrying a firearm in furtherance of a crime of violence and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2; and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). ( Id., Doc. No. 1 at 2-8: Indictment). Weaver, Shuart, and Heller were also charged in the conspiracy count, as well as in several of the substantive Hobbs Act robbery and § 924(c) counts. (Id. at 2-7). This Court appointed Attorney Kevin Tate to represent Petitioner.
Petitioner entered into a plea agreement in which he agreed to plead guilty to the Hobbs Act conspiracy count, one count of using and carrying a firearm during a crime of violence, and the felon-in-possession-of-a-firearm count. ( Id., Doc. No. 54 at 1: Amended Plea Agreement). In exchange, the Government agreed to dismiss the remaining counts, including the four remaining § 924(c) counts. (Id. at 1). With respect to the guidelines, the parties agreed that Petitioner would be entitled to a two-level reduction if he clearly demonstrated acceptance of responsibility, that his plea was timely, and that neither party would seek a departure or variance from the applicable guidelines range. (Id. at 2). Petitioner acknowledged, however, that "any estimate of the likely sentence [was] a prediction rather than a promise" and that this Court is "not bound by recommendations or agreements" between the parties and "has the final discretion to impose any sentence up to the statutory maximum." (Id.). In exchange for the Government's concessions, Petitioner waived the right to appeal or collaterally attack his conviction or sentence, with the exception of claims of ineffective assistance of counsel or prosecutorial misconduct. (Id. at 5).
Consistent with his plea agreement, Petitioner pled guilty in a hearing conducted pursuant to Rule 11 of the Federal Rules of Criminal Procedure, United States Magistrate Judge David S. Cayer presiding. ( Id., Doc. No. 100 at 2-14: R. 11 Hrg. Tr.). After placing Petitioner under oath, the magistrate judge confirmed that Petitioner understood the charges to which he was pleading guilty, as well as the applicable statutory penalties. (Id. at 3-5). Following a recitation of the charges, Petitioner admitted that he was, "in fact, " guilty of the three counts. (Id. at 8). After the government summarized the terms of the plea agreement, Petitioner also acknowledged that he understood the terms of his agreement and agreed with them. (Id. at 9-11). With respect to the guidelines, Petitioner answered in the affirmative when the magistrate judge asked whether his attorney discussed how the sentencing guidelines may apply to his case. (Id. at 6-7). Petitioner also acknowledged that he would be bound by his plea even "if the sentence [were] more severe than [he] expected." (Id. at 7). At the conclusion of the hearing, the magistrate judge found Petitioner's plea to be knowingly and voluntarily made and accepted it. (Id. at 14).
In preparation for sentencing, the probation officer prepared a presentence investigation report. ( Id., Doc. No. 74 at 25). Citing U.S.S.G. § 1B1.2(d), the probation officer calculated the guidelines for Petitioner's Hobbs Act conspiracy conviction as if he had "been convicted on a separate count of conspiracy for each offense that [he] conspired to commit." (Id. at 11). Specifically, the probation officer calculated an adjusted offense level for the six robberies that comprised the conspiracy charge, beginning with a base offense level of 20 for each robbery and then adding five or six levels for the brandishing or use of a firearm and two levels for the robberies during which one of the victims sustained bodily injury. (Id. at 11-14). In calculating the offense level for the robbery associated with Petitioner's conviction for using and carrying a firearm during and in relation to a crime of violence, the probation officer omitted the firearm enhancement. (Id. at 14). In addition to the six robbery offenses, the probation officer calculated an offense level for the felon-in-possession-of-a-firearm count. (Id.).
The probation officer then applied the multiple-count adjustment provisions in guidelines U.S.S.G. § 3D1.3, treating each robbery as a group, calculating the corresponding units for each group, and then adding five levels to the robbery with the highest adjusted offense level, resulting in a combined adjusted offense level of 33. (Id. at 15). After reducing three levels for acceptance of responsibility, the probation officer calculated a total offense level of 30, which, when coupled with Petitioner's criminal history category of IV, resulted in a ...