United States District Court, Eastern District of North Carolina, Southern Division
W. Earl Britt Senior U.S. District Judge
This matter is before the court for initial review of a 28 U.S.C. § 2255 motion pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings. Under this Rule, “[i]f 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 . . . .” R. Gov. § 2255 Pro. 4(b).
In May 2012, petitioner pled guilty to a criminal information charging him with securities fraud in violation of 15 U.S.C. § 78j(b). In October 2012, the court sentenced petitioner to 210 months imprisonment. Petitioner appealed. By mandate issued 26 December 2013, the Fourth Circuit Court of Appeals affirmed in part and dismissed in part. (DE ## 64, 66.) On 18 November 2014, petitioner timely deposited the instant § 2255 motion in the prison mailing system. (DE # 82.)
In his § 2255 motion, petitioner asserts two claims of ineffective assistance of counsel. The applicable legal standard for such a claim is well established.
To establish ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a petitioner must show both (1) that his counsel's performance was deficient and (2) that he suffered prejudice as a result. First, a defense attorney's performance is considered deficient if the “representation fell below an objective standard of reasonableness.” Id. at 688. The Supreme Court has specified that because of the inherent difficulties in “eliminat[ing] the distorting effects of hindsight, ” courts “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Second, counsel's deficient performance results in prejudice if there exists “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, ” where “reasonable probability” means “a probability sufficient to undermine confidence in the outcome.” Id. at 694. The mere conceivability of some effect on the outcome is insufficient. Id. at 693. Because of the deference due both trial counsel and the initial outcome under Strickland's respective prongs, “[s]urmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, ___ U.S. ___, ___, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010).
Estep v. Ballard, 502 F. App’x 234, 238 (4th Cir. 2012) (alterations in original).
Specifically, petitioner claims that trial counsel rendered ineffective assistance by failing to object to the court’s violation of Federal Rule of Criminal Procedure 11 “by not advising [petitioner] of his rights to be tried by jury, confront and cross-examine adverse witnesses, against compelled self-incrimination, and to plead not guilty” and “by not explaining to and inquiring of [petitioner] personally whether he understood the nature and essential elements of the charge against him due to the complexity of the offense.” (Mem., DE # 82, at 17.) He then claims that “Appellate Counsel was ineffective for failing to raise and argue the Rule 11 violations on direct appeal.” (Id.)
Pursuant to Rule 11(b)(1) of the Federal Rules of Criminal Procedure, before the court accepts a guilty plea, the court must inform the defendant of, and determine that the defendant understands, the right to plead not guilty, the right to a jury trial, the right at trial to confront and cross-examine adverse witnesses and to be protected from compelled self-incrimination, and the nature of the charge to which the defendant is pleading guilty, among other things. As evidenced by the transcript of petitioner’s plea hearing, the court complied with these aspects of Rule 11.
Before petitioner entered his plea, the court advised petitioner and others who intended to plead guilty as follows.
Those of you have indicated through counsel that you are here to enter a plea of guilty to some or all of the charges that have been lodged against you, listen carefully to what I'm going to be saying to you for the next few minutes.
I am going to be going through an advice of rights to you. After I get through, you will be brought up to counsel table individually with your lawyer, at which time you will be placed under oath and I will ask you some questions.
The questions that I ask you will be based in large measure on the matters that I'm going to be advising you about now, so it's critically important that you listen carefully to everything that I am saying.
As I've indicated to you, you will be under oath when you respond to my questions, and if you give an incorrect answer, you could, of course, subject yourself to the penalties of perjury, and you don't want that to happen, and neither do I, so listen carefully.
When you are brought forward to be questioned by me, if you don't understand a question I've asked you, simply ask me to repeat it -- I'll be glad to do that -- and if you desire to consult with your lawyer before giving your answer in ...