United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD, Magistrate Judge.
This Court (per Senior United States District Judge N. Carlton Tilley, Jr.) entered a Judgment against Petitioner imposing, inter alia, a prison term of 42 months, following his guilty plea to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). (Docket Entry 20; see also Docket Entry 1 (Indictment); Docket Entry 10 (Superseding Indictment); Docket Entry 17 (Plea Agreement); Docket Entry dated Dec. 12, 2012 (documenting guilty plea); Docket Entry dated Mar. 15, 2013 (documenting sentencing); Docket Entry 31-3 (Sent'g Hrg. Tr.).) Petitioner did not give notice of appeal. (See Docket Entry 21, ¶ 8; see also Docket Entries dated Mar. 15, 2013, to present.) He did, however, timely file a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 ("Section 2255 Motion"). (Docket Entry 21.) The United States responded (Docket Entry 31) and Petitioner replied (Docket Entry 33). The Court should deny relief as to all claims in Petitioner's Section 2255 Motion, except his claim that his counsel provided constitutionally ineffective assistance by failing to appeal, as to which claim the Court should grant relief by re-entering judgment (thus allowing Petitioner another opportunity to institute a timely direct appeal).
Petitioner's Section 2255 Motion asserts five grounds for relief:
1) "Ineffective assistance of trial counsel, " based on the allegation that "counsel coerced [Petitioner] into pleading guilty to charges which included enhancements that were not included in the indictment and that [he] was factually innocence [sic] of" (Docket Entry 21, ¶ 12(Ground One));
2) "Ineffective Assistance of Trial Counsel - Refusing to Appeal when directed to do so" (id., ¶ 12 (Ground Two));
3) "Ineffective Assistance of Counsel, " due to "Action/Inactions by counsel to deprive [Petitioner] of his 5th Amendment Due Process rights guaranteed by the Constitution" (id., supp. p. 2 (paragraph labeled "Grounds three"));
4) "Procedural Error/Prosecutorial Error, " attributed to "Ambiguities in the indictment. Also (enhancement usage), Rule 7 violations, Federal Rule Criminal Procedure (et al.)" (id. (paragraph labeled "Grounds Four")); and
5) "Ineffective Asst., " premised on an assertion that "Counsel did not have acceptable knowledge of particular laws, district precedent thereof, and applicability in its myriad forms to [Petitioner]" (id. (paragraph labeled "Grounds Five")).
As to Ground One, Petitioner seeks to challenge his guilty plea to possessing a firearm as a felon on the basis that his advisory Sentencing Guidelines calculation included a two-offense-level increase under U.S.S.G. § 2K2.1(b)(4)(A), because the firearm he possessed was stolen. (See Docket Entry 21, ¶ 12(Ground One).) Specifically, Petitioner has asserted the following:
I knew the gun was not stolen and I told counsel this. He ignored my words and insisted I had to plead guilty. Then the PSIR [Presentence Investigation Report] came out and included the wording that the gun was stolen and I had a two level enhancement. I again told him this was wrong. He refused to object to this fact and insisted that I remain silent. My Sixth Amendment rights as established in Apprendi, Booker and Alleyne were violated and I received a sentence in excess of what I pleaded guilty to.
(Id.) This claim fails as a matter of law for a number of reasons.
First, the status of the firearm as stolen (or not) did not constitute an element of the Section 922(g)(1) offense to which Petitioner pleaded guilty. See United States v. Moye, 454 F.3d 390, 395 (4th Cir. 2006) (en banc) ("[T]he elements required for conviction under § 922(g)(1) are: (1) the defendant previously had been convicted of a crime punishable by a term of imprisonment exceeding one year; (2) the defendant knowingly possessed, transported, shipped, or received, the firearm; and (3) the possession was in or affecting commerce, because the firearm had travelled in interstate or foreign commerce at some point during its existence.'" (quoting United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc))). Second, Petitioner has declared that he voluntarily chose to plead guilty to the felon-firearm offense "because he is, in fact, guilty and not because of any threats or promises." (Docket Entry 17, ¶ 4.)
Third, Petitioner's Plea Agreement contained no provision regarding the applicability or inapplicability of Section 2K2.1(b)(4)(A), but, instead, as to specific provisions of the Sentencing Guidelines, addressed only U.S.S.G. § 3E1.1. (See id., ¶ 5.) Fourth, Petitioner acknowledged in his Plea Agreement that, in light of his guilty plea, the Court:
is required to consult the Guidelines and take them into account when sentencing. In so doing, the [Court] will first calculate, after making the appropriate findings of fact, the sentencing range prescribed by the Guidelines, and then will consider that range as well as other relevant factors set forth in the Guidelines and those factors ...