United States District Court, M.D. North Carolina
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD, Magistrate Judge.
This Court (per United States District Judge James A. Beaty, Jr.) entered a Judgment against Petitioner imposing, inter alia, a prison term of 41 months and a supervised release term of three years, following his guilty plea to possessing cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C). (Docket Entry 15; see also Docket Entry 1 (Indictment); Docket Entry 11 (Plea Agreement); Docket Entry dated Jan. 9, 2013 (documenting guilty plea); Docket Entry dated May 17, 2013 (documenting sentencing); Docket Entry 22 (Sent'g Hrg. Tr.).) Petitioner did not give notice of appeal. (See Docket Entry 17, ¶ 8; see also Docket Entries dated May 17, 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 17.) The United States responded (Docket Entry 23) and, despite notice of his right to reply (Docket Entry 24), Petitioner filed no reply (see Docket Entries dated Mar. 20, 2014, to present). The Court should deny relief as to all claims in Petitioner's Section 2255 Motion, except the claim within Ground Three that his counsel provided constitutionally ineffective assistance by failing to appeal, as to which claim the Court should defer adjudication pending an evidentiary hearing.
Petitioner's Section 2255 Motion asserts four grounds for relief (the third of which contains multiple claims):
1) "Criminal Catergory [sic] Miscalculated, " i.e., Petitioner should have qualified for Criminal History Category I under the Sentencing Guidelines (Docket Entry 17, ¶ 12 (Ground One));
2) "Crack Disparity, " i.e., Petitioner's counsel should have asked the Court to impose the sentencing provisions applicable to cocaine hydrochloride rather than the sentencing provisions applicable to cocaine base (id., ¶ 12 (Ground Two));
3) "Ineffective Assistance of Counsel, " i.e., Petitioner's counsel (A) "misinformed [Petitioner] about [the] disparity in cocaine base verse [sic] cocaine [hydrochloride], " (B) failed to argue that Petitioner qualified for Criminal History Category I and to address Petitioner's "offense level, " (C) "never informed [Petitioner] of the probation [he] received, " (D) failed to act on Petitioner's report that he "qualif[ied] for [the] safety valve, " and (E) failed to notice an appeal despite Petitioner "ask[ing] [counsel] to put in a direct appeal" (id., ¶ 12 (Ground Three)); and
4) "Minor Role Should Be Simple Possession, " i.e., Petitioner "was a user and use [sic] it to obtain drugs for use" (id., ¶ 12 (Ground Four)).
As to Ground One, Petitioner has provided no facts or argument to support the position that he qualified for Criminal History Category I (rather than Criminal History Category II, which the Court (per Judge Beaty) found applicable at sentencing (see Docket Entry 22 at 3, 12)). (See Docket Entry 17, ¶ 12 (Ground One).) Accordingly, Ground One is "vague, conclusory, speculative, and unsupported and fails for all of these reasons." Cabrera v. United States, Nos. 1:09CR323-1, 1:12CV695, 2014 WL 6386902, at *9 (M.D. N.C. Nov. 14, 2014) (unpublished) (Osteen, C.J.); see also United States v. Dyess , 730 F.3d 354, 359 (4th Cir. 2013) ("[V]ague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court." (internal quotation marks omitted)); Whitley v. United States, Nos. 1:03CR445, 1:12CV67, 2014 WL 4443295, at *6 n.1 (M.D. N.C. Sept. 9, 2014) (unpublished) (recommendation of Webster, M.J., adopted by Beaty, S.J.) ("Unsupported, conclusory allegations do not warrant an evidentiary hearing, much less relief. See Nickerson v. Lee , 971 F.2d 1125, 1136 (4th Cir. 1992), abrog'n on other grounds recog'd, Yeatts v. Angelone , 166 F.3d 255 (4th Cir. 1999).").
As to Ground Two, Petitioner has stated: "I asked my lawyer to argue for the 1 to 1 ratio concerning cocaine base. He never did." (Docket Entry 17, ¶ 12 (Ground Two).) In fact, at Petitioner's sentencing hearing, his counsel argued as follows: "I will note as a basis for either a low-end sentence or perhaps a variance that had this been - this is the old crack/powder disparity situation where had this been powder cocaine... instead of a 41 to 51 month range, [Petitioner] would be at a 10- to 16-month range." (Docket Entry 22 at 5-6.) In other words, the record directly refutes Petitioner's allegations as to Ground Two and the Court, therefore, should deny relief.
As to Ground Three, Petitioner must show that his counsel's performance fell below a reasonable standard for defense attorneys and that prejudice resulted. See Strickland v. Washington , 466 U.S. 668, 687-94 (1984). "Surmounting Strickland's high bar is never an easy task.... [T]he standard for judging counsel's representation is a most deferential one." Harrington v. Richter , 562 U.S. 86, 105 (2011) (internal quotation marks omitted).
In the face of that high bar, Ground Three first asserts that "[Petitioner's] lawyer misinformed [him] about [the] disparity in cocaine base verse [sic] cocaine [hydrochloride]." (Docket Entry 17, ¶ 12 (Ground Three).) Petitioner has offered nothing further on this point. (See id.) As a result, he has not established that any unidentified misinformation from his counsel about the cocaine base/cocaine hydrochloride sentencing disparity negatively affected the outcome of the case. In particular, where (as here) a defendant pleads guilty and later complains of bad advice, "to satisfy the prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart , 474 U.S. 52, 59 (1985). Petitioner has made no such showing. (See Docket Entry 17, ¶ 12 (Ground Three).) To the contrary, "Petitioner has provided only conclusory allegations which meet neither the error nor the prejudice prong of the Strickland analysis." Cano v. United States, Nos. 1:05CR354-4, 1:09CV321, 2009 WL 3526564, at *3 (M.D. N.C. Oct. 22, 2009) (unpublished) (Dietrich, M.J.), recommendation adopted, slip op. (M.D. N.C. Dec. 29, 2009) (Beaty, C.J.).
Next, Ground Three states "my criminal catergory [sic] was never argued. The offense level as well." (Docket Entry 17, ¶ 12 (Ground Three).) In fact, the record reflects that Petitioner's counsel "filed one objection concerning one criminal history point. The Government [then] filed a pleading in which they agree[d] that that point could be released and not counted." (Docket Entry 22 at 3.) That successful action lowered Petitioner "down one criminal history category." (Id.; see also id. at 12 ("[T]he Court has noted with respect to an objection filed by [Petitioner] that one criminal history point... should not be counted, which resulted in a criminal history category of II as opposed to III as contained in the presentence report.").) Further, as discussed in connection with Ground Two, Petitioner's counsel argued for leniency because, had the case involved cocaine hydrochloride rather than cocaine base, a lower offense level would have applied. Moreover, for reasons outlined below in the discussion of Ground Four, Petitioner has not shown that his counsel should have sought (or that Petitioner could have received) a minor role adjustment under U.S.S.G. § 3B1.2(b). Lastly, to the extent this portion of Ground Three contends Petitioner's counsel should have raised any other argument regarding criminal history or offense level calculations under the Guidelines, it is "vague, conclusory, speculative, and unsupported and fails for all of these reasons." Cabrera, 2014 WL 6386902, at *9.
Ground Three also states that counsel "never informed [Petitioner] of the probation [he] received." (Docket Entry 17, ¶ 12 (Ground Three).) Petitioner, however, received an active sentence, not probation. (See Docket Entry 22 at 13.) If this part of Ground Three refers to the three-year supervised release term that will follow Petitioner's imprisonment, he again has not shown that any misadvice adversely impacted the outcome of his case or that he would have gone to trial if properly advised. (See Docket Entry 17, ¶ 12 (Ground Three).) Accordingly, like the first claim within Ground Three (concerning alleged misinformation regarding the disparate sentencing treatment of cocaine base and cocaine hydrochloride), this aspect of Ground Three falls short. See, e.g., Hill , 474 U.S. at 59; Cano, 2009 WL 3526564, at *3.
As a final matter (in regards to Ground Three), Petitioner has averred that he "asked [his counsel] to put in a direct appeal." (Docket Entry 17, ¶ 12 (Ground Three); see also id., ¶ 13 ("My lawyer was told to appeal....").) "Once [a federal criminal defendant] unequivocally instruct[s] his attorney to file a timely notice of appeal, his attorney [i]s under an obligation to do so." United States v. Poindexter , 492 F.3d 263, 269 (4th Cir. 2007); see also Roe v. Flores-Ortega , 528 U.S. 470, 477 (2000) ("[A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable."). Petitioner's counsel has sworn by affidavit that "[Petitioner] never requested that [counsel] file a notice of appeal." (Docket Entry 23, Ex. A at 5.) ...