United States District Court, E.D. North Carolina, Western Division
JAMES C. DEVER, III, Chief District Judge.
On June 13, 2014, Charles Hargrove, Jr. ("Hargrove") filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his 132-month sentence [D.E. 145]. On August 6, 2014, the United States ("government") moved to dismiss Hargrove's section 2255 motion [D.E. 149]. The court notified Hargrove about the motion to dismiss, the consequences of failing to respond, and the response deadline [D.E. 151]. see Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam). Hargrove did not respond to the government's motion to dismiss. As explained below, the court grants the government's motion to dismiss and dismisses Hargrove's section 2255 motion.
On June 29, 2011, a federal grand jury in the Eastern District of North Carolina charged Hargrove with conspiracy to distribute and possess with intent to distribute 28 grams or more of cocaine base (crack), and 500 grams or more of cocaine, in violationof21 U.S.C. §§ 841(a)(1), 846 (count one), and with distribution of 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) (count four). see Indictment [D.E. 1]. On November 29, 2011, Hargrove pleaded guilty, pursuant to a written plea agreement [D.E. 81], to a one-count criminal information [D.E. 76] charging him with conspiracy to distribute and possess with the intent to distribute 500 grams or more of cocaine, in violationof21 U.S.C. §§ 841(a)(1) and 846. see Rule 11 Tr. [D.E. 114] 26-29.
On July 10, 2012, Hargrove filed a motion to withdraw his guilty plea. see [D.E. 110]. Hargrove premised his motion to withdraw his guilty plea on his first lawyer's alleged ineffective assistance of counsel in declining to assert an entrapment defense and Hargrove's desire to plead not guilty and assert an entrapment defense. see id.; Sentencing Tr. [D.E. 131] 80. On July 26, 2012, at the beginning ofHargrove's sentencing hearing, the court denied Hargrove's motion to withdraw his guilty plea. see Sentencing Tr. 5-10.
After denying Hargrove's motion to withdraw his guilty plea, the court conducted Hargrove's sentencing hearing. The court found the advisory guideline range to be 121 to 151 months' imprisonment, based on a total offense level of 32 and a criminal history category of I. see id. 81-82. In light of Hargrove's motion to withdraw his guilty plea in which he persisted in denying guilt, the court declined to give Hargrove a three-level reduction for acceptance of responsibility. see id. The court then considered the arguments of counsel, Hargrove's allocution, and all relevant factors under 18 U.S.C. § 3553(a). The court sentenced Hargrove to 132 months' imprisonment. see id. 87-92.
Hargrove appealed and argued that the court erred in failing to permit him to withdraw his guilty plea. On March 29, 2013, the United States Court of Appeals for the Fourth Circuit rejected Hargrove's argument and affirmed his conviction and sentence. see United States v. Hargrove, 518 F.App'x 141, 142-43 (4th Cir. 2013) (per curiam) (unpublished).
On June 13, 2014, Hargrove filed his section2255 motion. see [D.E. 145]. Hargrove alleges that his second counsel rendered ineffective assistance by failing to properly advise him of the "negative consequences" that moving to withdraw his guilty plea would have on receiving acceptance ofresponsibility at sentencing and by failing to tell Hargrove that he could have achieved the "same goal" by challenging the drug weight attributed to him at sentencing. see id. 4. On August 6, 2014, the government moved to dismiss Hargrove's motion and filed a supporting memorandum. see [D.E. 149, 150].
In analyzing a motion to dismiss under Rule 12(b)(6), a court need not accept a complaint's legal conclusions drawn from the alleged facts. see, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Similarly, a court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quotation omitted); see Iqbal, 556 U.S. at677-79. Moreover, acourtmaytakejudicial notice ofpublicrecords without converting a motion to dismiss into a motion for summary judgment. see, e.g., Fed.R.Evid. 201; Tellabs. Inc. v. Makor Issues & Rights. Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). In reviewing a section 2255 motion to vacate, the court is not limited to the motion itself. The court also may consider the files and records of the case." 28 U.S.C. § 2255(b); see United States v. McGill, 11 F.3d 223, 225-26 (1st Cir. 1993).
"The Sixth Amendment entitles criminal defendants to the effective assistance of counsel-that is, representation that does not fall below an objective standard of reasonableness in light of prevailing professional norms." Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (per curiam) (quotation omitted); see Strickland v. Washington, 466 U.S. 668, 687-91 (1984). The Sixth Amendment right to counsel extends to all critical stages of a criminal proceeding. see e.g., Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012); Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012). A defendant is entitled to effective assistance of counsel when pleading guilty, and a guilty plea cannot stand if, due to counsel's ineffective assistance, it was involuntary or unknowing. see, e.g., Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1296-97 & n.17 (4th Cir. 1992). Moreover, "sentencing is a critical stage of trial at which a defendant is entitled to effective assistance of counsel, and a sentence imposed without effective assistance must be vacated and reimposed to permit facts in mitigation ofpunishment to be fully and freely developed." United States v. Breckenridge, 93 F.3d 132, 135 (4th Cir. 1996); see Glover v. United States, 531 u.s. 198, 203-04 (2001).
An individual alleging ineffective assistance of counsel must demonstrate that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance caused the individual prejudice. see Strickland, 466 U.S. at 687; see also Frye, 132 S.Ct. at 1409-10; Lafler, 132 S.Ct. at 1384-85; Hill, 474 U.S. at 57-58; Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en bane). When determining whether counsel's representation was objectively unreasonable, a court must be "highly deferential" to counsel's performance and must attempt to "eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. Therefore, the "court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id . A party also must show that counsel's deficient performance prejudiced the party. see id. at 691-96. A party does so by showing that there is a "reasonable probability" that, but for the deficiency, the result of the proceeding would have been different." Id. at 694.
"[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Id. at 695. In analyzing an ineffective assistance of counsel claim in a section 2255 motion, a court may rely on its own familiarity with the case. see Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977).
Hargrove claims that his second counsel was ineffective by failing to properly advise him of the "negative consequences" that moving to withdraw his guilty plea would have on receiving acceptance of responsibility at sentencing and by failing to tell Hargrove that he could have achieved the "same goal" by challenging the drug weight attributable to him at sentencing. see [D.E. 145] 4. The record belies Hargrove's attack on his counsel's performance.
Hargrove was indicted on June 29, 2011, and his first counsel was promptly appointed. Hargrove's first counsel worked closely with Hargrove to achieve a favorable plea agreement, including a guilty plea to a one-count criminal information that, unlike Hargrove's indictment, did not include any charge concerning crack cocaine. On November 29, 2011, Hargrove pleaded guilty to the one-count criminal information. At his Rule 11 hearing, the court advised Hargrove about the charge, the maximum penalties, and the sentencing process, told Hargrove that the court could sentence him to the statutory maximum of 480 months' imprisonment, that any estimate of his sentence or advisory guideline range from any source was not binding on the court, and that if he received a sentence up to the statutory maximum he would not be able to withdraw his guilty plea. see Rule 11 Tr. 17-26. Under oath, Hargrove ...