United States District Court, W.D. North Carolina, Charlotte Division
MAX O. COGBURN, Jr., District Judge.
THIS MATTER is before the court on petitioner's Motion to Vacate, Set Aside, or Correct Sentence (#1) and Amended Motion to Vacate, Set Aside, or Correct Sentence (#8).
Petitioner along with two co-defendants was indicted by the Grand Jury for the Western District of North Carolina, which charged him with conspiracy to possess with intent to distribute five kilograms or more of cocaine and fifty kilograms or more of crack cocaine, all in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). United States v. Boyd, et al., 3:10cr72 (W.D. N.C. 2010). As to petitioner, an Information was filed pursuant to 21 U.S.C. § 851, which provided petitioner with notice of the government's intent to seek an enhanced sentence based on petitioner's two prior convictions from the State of Arizona for felony drug offenses, to wit, possession of marijuana on December 5, 2001; and possession of a narcotic drug on July 19, 2004. Id. at (docket #6).
After such Information was filed, petitioner, assisted by counsel, entered into a written plea agreement in which he agreed to plead guilty to the drug conspiracy charge. Id. at (docket #30). In that agreement, petitioner therein stipulated that "the 2004 conviction referenced in [the] information is a valid predicate prior felony conviction under 21 U.S.C. 851, and that he has no challenge to the same." Id. at ¶ 4. In exchange, the respondent agreed to withdraw the § 851 notice as to all prior felony drug offenses other than the 2004 conviction stipulated to by petitioner. As the parties therein anticipated, such plea and stipulation would result in a statutory minimum of 20 years and a maximum of life in prison. Id. Further, petitioner agreed to waive his right to appeal or otherwise contest his conviction and sentence, with the exception of claims of ineffective assistance of counsel or prosecutorial misconduct. Id. at ¶¶ 21-22.
A Rule 11 proceeding on petitioner's plea was conducted by United States Magistrate Judge David S. Cayer. After conducting an extensive, sworn inquiry with petitioner and his counsel, Judge Cayer accepted such plea based on a finding that such plea was "knowingly and voluntarily made." Id. at (#34 & #87). After a presentence investigation report was prepared, the court granted petitioner's request to delay sentencing based on pending proceedings of the Court of Appeals for the Fourth Circuit in United States v. Simmons, No. 08-4475.
After the appellate court issued its decision, United States v. Simmons, 649 F.3d 237, 249 (4th Cir. 2011) (en banc), a sentencing hearing was convened. At that hearing, the court first inquired of petitioner as to whether the answers he gave to the magistrate judge at the Rule 11 hearing were correct. After petitioner confirmed his answers and informed the court that his answers remained unchanged, the court confirmed acceptance of the plea and, after a factual basis was established, entered a Verdict of guilty. The government then withdrew the notice of one of the two prior felony drug convictions as it promised to do, and the court sentenced petitioner at the bottom of the guidelines range (20 years to life) to 20 years imprisonment, which was the statutory mandatory minimum for the offense of conviction with one prior felony drug conviction. Petitioner filed a direct appeal of his conviction and such sentence. United States v. Boyd, No. 12-4328. In that appeal, petitioner asserted two claims: that his 2004 Arizona drug conviction did not qualify as a predicate offense after Simmons; and that he received ineffective assistance of counsel for counsel's failure to fully investigate the Simmons issue. The court dismissed the first claim as barred by petitioner's appellate waiver and rejected the claim of ineffective assistance after finding no conclusive evidence of ineffectiveness in the record. United States v. Boyd, 520 F.Appx. 224 (4th Cir. 2013).
Within a year of the Judgment becoming final, petitioner filed this action. On July 2, 2014, the court conducted an initial screening, identified colorable claims, and directed that the government Answer or otherwise respond to the petition within 60 days. Order (#2). On September 3, 2014, respondent filed its Response (#4) and Motion to Dismiss (#5), and on September 8, 2014, petitioner filed a Motion to Amend (#8), which mooted the respondent's Motion to Dismiss as provided in Rule 15, Federal Rules of Civil Procedure.
On September 16, 2014, the court granted the Motion to Amend and instructed the government to Answer or otherwise respond to the Amended Motion to Vacate, Set Aside, or Correct Sentence with 60 days. Order (#7). After seeking and receiving an extension of that deadline, Order (#10), respondent filed its Supplemental Response (#11) on December 18, 2014.
After conducting an initial review of the Supplemental Response, the court determined that respondent was again seeking dismissal and, under Rule 5(d) of the Rules Governing Section 2255 Proceedings, allowed petitioner an opportunity to file a reply to such response. Order (#12). Within the time provided, petitioner filed his Reply (#13), which presents arguments in opposition to the respondent's supporting arguments and incorporates all of his earlier arguments. In addition, it appears that petitioner, without leave of court, has raised an additional ground in his Reply, but requires no response from the government.
It appearing that the issues have been fully briefed, the court enters the following findings, conclusions, and Order denying the petitioner's Motion to Vacate, Set Aside, or Correct Sentence and amended Motion to Vacate, Set Aside, or Correct Sentence.
In collaterally attacking his conviction and sentence, petitioner made the following contentions:
(1) his 20-year sentence is invalid because the 2004 Arizona conviction is not a valid predicate conviction after Simmons and trial counsel was ineffective for failing to fully investigate and successfully raise the issue before the district court;
(2) he received ineffective assistance of counsel based on trial counsel's advice at the plea bargaining phase that he faced mandatory life imprisonment;
(3) the indictment improperly charged two conspiracies in a single count;
(4) a co-conspirator's conduct was not reasonably foreseeable to Petitioner; and
(5) the Court engaged in impermissible fact-finding in violation of ...