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Felton v. United States

United States District Court, E.D. North Carolina, Northern Division

January 29, 2015

KENNY FELTON, Petitioner,


JAMES C. DEVER, III Chief District Judge.

On April 28, 2014, Kenny Felton ("Felton") filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his 126-month sentence [D.E. 215]. On September 5, 2014, the United States ("government") moved to dismiss Felton's section 2255 motion [D.E. 227]. On September 24, 2014, Felton responded to the government's motion [D.E. 230]. As explained below, the court grants the government's motion to dismiss and dismisses Felton's section 2255 motion.


On May 17, 2012, a federal grand jury in the Eastern District of North Carolina charged Felton with conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (count one). See Indictment [D.E. 1]. On October 1, 2012, Felton pleaded guilty, pursuant to a written plea agreement to count one. See [D.E. 55, 232].

On July 16, 2013, the court sentenced Felton to 126 months' imprisonment and 4 years of supervised release. See Sentencing Tr. [D.E. 233] 14. At the sentencing hearing, the court found that Felton was a career offender under U.S.S.G. § 4B1.1. See id. 12; Presentence Investigation Report ("PSR") [D.E. 160] ¶ 53. Thus, Felton's total offense level was 31, his criminal history category was VI, and his advisory guideline range was 188 to 235 months' imprisonment. See Sentencing Tr. 5; ¶¶ PSR 50-53, 85, 88. Felton did not object to the advisory guideline range. See Sentencing Tr. 5-6. The court then granted the government's motion under U.S.S.G. § 5K1.1, considered all relevant section 3553(a) factors, considered the arguments of counsel, considered Felton's allocution, and sentenced Felton to 126 months' imprisonment. See id. 6-7, 11-15. Judgment was entered on July 19, 2013, and Felton did not appeal. See [D.E. 166].

In Felton's 2255 motion, Felton asserts that the court improperly designated him a career offender based on prior convictions not alleged in the indictment and thereby violated Alleyne v. United States, 133 S.Ct. 2151 (2013). See Pet. Attach. [D.E. 215-1] 1-7; [D.E. 230] 5-6. Felton also asserts that his counsel provided constitutionally ineffective assistance by failing to understand the relevant facts and law before advising Felton to plead guilty. See [D.E. 230] 1-4. Felton specifically complains that he would have gone to trial had counsel told him that he might receive a 126-month sentence. See id. 4.

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. at 677-79. Moreover, a court may take judicial notice of public records 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 appellate waiver in Felton's plea agreement bars Felton's first claim. In his plea agreement, Felton agreed

[t]o waive knowingly and expressly all rights... to appeal whatever sentence is imposed, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to [Felton] at the time of [his] guilty plea.

Plea Agreement [D.E. 55] ¶ 2(c). An appellate waiver is enforceable "to preclude a defendant from appealing a specific issue if the record establishes that the waiver is valid and that the issue being appealed is within the scope of the waiver." United States v. Buick, 408 F.3d 162, 168 (4th Cir. 2005).

To be valid, the appellate waiver must have been knowing, intelligent, and voluntary. See, e.g., United States v. Davis, 689 F.3d 349, 354-55 (4th Cir. 2012) (per curiam); United States v. Thomsbury, 670 F.3d 532, 537 (4th Cir. 2012); Buick, 408 F.3d at 169. "Generally, if a district court questions a defendant regarding the waiver of appellate rights during the Rule 11 colloquy and the record indicates that the defendant understood the full significance of the waiver, the waiver is valid." Thomsbury, 670 F.3d at 537; see United States v. Copeland, 707 F.3d 522, 528-30 (4th Cir. 2013). At his Rule 11 hearing, Felton affirmed that he had read and discussed his plea agreement with his lawyer, that he understood each provision in the plea agreement, and that the plea agreement was the entire agreement that he had with the government. See Rule 11 Tr. [D.E. 232] 20-21. The court then read Felton's appellate waiver to him, and Felton affirmed that he understood the rights he was giving up in the waiver. See id. 21-22. Thus, Felton's waiver was valid.

Moreover, Felton reserved only the right to file a section 2255 motion "based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to [him] at the time of [his] guilty plea." Plea Agreement ¶ 2(c). Felton's claim concerning Alleyne and his career-offender status do not involve ineffective assistance of counsel or prosecutorial misconduct. Thus, the claim falls within the scope of his appellate waiver. See Copeland, 707 F.3d at 529-30. Accordingly, the court enforces Felton's waiver and dismisses Felton's first claim.

Alternatively, Alleyne does not help Felton. In Alleyne, the Supreme Court held that any fact (other than a prior conviction) supporting an enhanced mandatory minimum sentence must be alleged in the indictment and be admitted by the defendant or found by a jury beyond a reasonable doubt. See Alleyne, 133 S.Ct. at 2155, 2159-60. However, Alleyne was decided on direct review and does not apply retroactively on collateral review. See, e.g., Whorton v. Bockting, 549 U.S. 406, 416-18 (2007) (describing framework used to analyze retroactivity on collateral review); United States v. Stewart, 540 F.Appx. 171, 172 n.* (4th Cir. 2013) (per curiam) (unpublished) (noting that Alleyne is not retroactively applicable to cases on collateral review); see also Hughes v. United States, 770 F.3d 814, 818-19 (9th Cir. 2014) (same); In re Mazzio, 756 F.3d 487, 488 (6th Cir. 2014) (same); United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014) (same); United States v. Harris, 741 F.3d 1245, 1250 n.3 (11th Cir. 2014) (same); United States v. Redd, 735 F.3d 88, 91-92 (2d Cir. 2013) (per curiam) (same); In re Kemper, 735 F.3d 211, 212 (5th Cir. 2013) (per curiam) (same); Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013) (same); accord United States v. Morris, 429 F.3d 65, 71-72 (4th Cir. 2005) (holding that Booker is not retroactively applicable to cases on collateral review).

Alternatively, even if Alleyne applied retroactively, it would not help Felton. Alleyne does not impact a court's ability to consider prior convictions at sentencing for purposes of a recidivism enhancement (such as the career offender guideline). See Alleyne, 133 S.Ct. at 2160 n.1; see also James v. United States, 550 U.S. 192, 214 n.8 (2007); Cunningham v. California, 549 U.S. 270, 282 (2007); Almendarez-Torres v. United States, 523 U.S. 224, 239-48 (1998). Furthermore, Alleyne has no impact on a court's ability to apply the advisory sentencing guidelines and make findings of fact, including findings concerning prior convictions. See, e.g., Alleyne, 133 S.Ct. at 2163; United States v. Benn, 572 F.Appx. 167, 179-80 & n.4 (4th Cir. 2014) (per curiam) (unpublished) (collecting cases); United States v. Gibbs, 547 F.Appx. 174, 185 n.4 (4th Cir. 2013) (per curiam) (unpublished); United States v. ...

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