United States District Court, E.D. North Carolina, Eastern Division
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, Jr., District Judge.
This matter comes before the court on the government's motion to dismiss [DE-46] Petitioner Dontresz Hills' ("Hill" or "Petitioner") motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence [DE-40]. Petitioner filed a response in opposition to the government's motion [DE-51], and the motions are now ripe for review. These motions were referred to the undersigned and are considered here as a recommendation to the district court. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Crim. P. 59(b)(1). For the reasons stated below, it is recommended that the government's motion to dismiss be allowed and Petitioner's § 2255 petition be dismissed.
On March 14, 2012, Hill pled guilty, pursuant to a memorandum of plea agreement, to one count of conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base (crack) and 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. [DE-25, -27]. On September 6, 2013, the sentencing court determined Hill's total offense level was 35, including a two-level adjustment upward for possession of a dangerous weapon during a drug offense under U.S.S.G. § 2D1.1(b)(1) and a three-level adjustment downward for acceptance of responsibility, and that Petitioner had a criminal history category of III, resulting in an advisory guideline range of 210-262 months. Sentencing Tr. [DE-39] at 4:25-5:4; 23:4-11. The court sentenced Hill to 220 months and five years' supervised release. Id. at 27:12-13. Hill did not appeal his conviction or sentence.
On September 9, 2013, Petitioner filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that (1) the court erred in applying the two-level adjustment pursuant to § 2D1.1 (b)(1); and (2) he received ineffective assistance of counsel. Pet'r's Mot. [DE-40] at 4-7. The government contends that Petitioner's ineffective assistance claims do not meet the requirements of Strickland v. Washington, 466 U.S. 668, 687 (1984), and Petitioner's substantive claim of sentencing error has been waived pursuant to the plea agreement. Gov't's Mem. [DE-47] at 4-9.
II. LEGAL STANDARDS
A. 28 U.S.C. § 2255
After conviction and exhaustion, or waiver of any right to appeal, courts and the public can presume that a defendant stands fairly and finally convicted. See United States v. Frady, 456 U.S. 152, 164-65 (1982). However, 28 U.S.C. § 2255 provides a means for a defendant convicted of a federal offense to collaterally attack a conviction or sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). "[T]hus § 2255 relief is not limited to constitutional error in a conviction or sentence." United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999). However, where a petition seeks relief from a nonconstitutional error, "the scope of review... is more limited than that of constitutional error; a nonconstitutional error does not provide a basis for collateral attack unless it involves a fundamental defect which inherently results in a complete miscarriage of justice, or is inconsistent with the rudimentary demands of fair procedure." Id. "In a § 2255 proceeding, the burden of proof is on petitioner to establish his claim by a preponderance of the evidence." Toribio-Ascencio v. United States, Nos. 7:05-CR-00097-FL, 7:08-CV-211-FL, 2010 WL 4484447, at *1 (E.D. N.C. Oct. 25, 2010) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).
B. Rule 12(b)(6)
Rule 12 of the Rules Governing Section 2255 Proceedings ("Habeas Rules") states that, "[t]he Federal Rules of Civil Procedure... to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules." A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure determines only whether a claim is stated; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In a section 2255 proceeding the court may consider "the files and records of the case, " as well as the pleadings, in deciding whether to dismiss a petitioner's motion. 28 U.S.C. § 2255(b); see Habeas Rule 4(b), ("If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion....").
A claim is stated under Rule 12(b)(6) if the pleading contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable" to the non-moving party but does not consider "legal conclusions, elements of a cause of action, ... bare assertions devoid of further factual enhancement[, ]... unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).
A. Application of U.S.S.G. § 2D1.1(b)(1)
Underlying several of Petitioner's claims is the assumption that the court improperly applied a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for use of a dangerous weapon (a firearm) in connection with a drug offense and that the court's consideration ofhearsay evidence at sentencing violated the Confrontation Clause. Specifically, Petitioner argues that because he was not charged with possessing a firearm, it was error for the court to apply the § 2D1.1(b)(1) enhancement where (1) he could not confront his accusers because the evidence presented at sentencing was in the form of a law enforcement officer's ...