United States District Court, E.D. North Carolina, Western Division
JAMES C. FOX, Senior District Judge.
This matter is before the court on the Government's Motion to Dismiss [DE-44] Antjwan Vincente Jones' pending Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [DE-36]. The issues have been fully briefed and are now ripe for ruling. For the reasons more fully stated below, the Government's Motion to Dismiss is ALLOWED.
Factual and Procedural Background
On October 5, 2011, Jones was charged in a two-count indictment. See Indictment [DE-1]. In Count One, Jones was charged with possession with intent to distribute a quantity of cocaine, a quantity of cocaine base and a quantity ofmarijuana, in violation of21 U.S.C. § 841(a)(l). Count Two charged Jones with possession with intent to distribute a quantity of cocaine and a quantity of marijuana, in violation of21 U.S.C. § 841(a)(1).
Jones' arraignment was held on December 5, 2011. At his arraignment, pursuant to a written plea agreement [DE-22], Jones pled guilty to Counts One and Two.
On May 17, 2012, Jones was sentenced to 151 months' imprisonment on Count One and 151 months' imprisonment on Count Two. See Judgment [DE-30]. It was ordered that the sentences were to be served concurrently. Jones did not appeal his conviction or sentence.
Jones filed the instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [DE-36] on May 21, 2013. In his section 2255 motion, Jones argues that he is entitled to relief on the following grounds: (1) his attorney provided ineffective assistance of counsel at sentencing when he failed to argue that the court should exercise its discretion to depart downwardly pursuant to U.S.S.G. § 5K2.23; (2) the court erred when it failed to consider that a downward departure may have been appropriate pursuant to U.S.S.G. § 5K2.23; (3) his attorney provided ineffective assistance of counsel at sentencing when he failed to argue for a downward departure pursuant to U.S.S.G. § 5K2.23 for the State convictions used to support the career offender enhancement; (4) the court erred when it failed to consider a downward departure pursuant to U.S.S.G. § 5K2.23 for the State convictions used to support the career offender enhancement; (5) his attorney provided ineffective assistance of counsel at sentencing when he failed to seek a downward departure pursuant to U.S.S.G. § 5K2.23 for his conviction in case number 10CRS220484; and (6) the court erred when it failed to consider that a downward departure pursuant to U.S.S.G. § 5K2.23 was appropriate for his conviction in case number 10CRS220484.
The Government has filed a Motion to Dismiss [DE-44]. In its Motion to Dismiss, the Government contends that dismissal of Jones' section 2255 motion is warranted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the basis that Jones has failed to state a claim upon which relief can be granted.
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint, not to resolve conflicts of fact or to decide the merits of the action. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). In considering a motion to dismiss, the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved which is consistent with the complaint's allegations. E. Shore Mkts., Inc. v. JD. Assocs. Ltd. P'shp, 213 F.3d 175, 180 (4th Cir. 2000). However, the "[f) actual allegations must be enough to raise a right to relief above the speculative level'" and the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face."' Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). "[A] plaintiffs obligation to provide the grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citations omitted); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, a court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., 213 F.3d at 180.
I. Jones' First, Third, and Fifth Claims Fail to Sufficiently Allege Ineffective Assistance of Counsel.
In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The petitioner bears the burden of proof as to both prongs of the Strickland standard. United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010). Under the first prong, the petitioner must show that his counsel's representation "fell below an objective standard of reasonableness" as measured by "prevailing professional norms." Strickland, 466 U.S. at 688. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. As to the second prong, the petitioner must demonstrate that his counsel's inadequate performance prejudiced him. /d. at 687. Therefore, the petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been ...