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Johnson v. United States

United States District Court, M.D. North Carolina

March 16, 2015

LARRY FRANKIE JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

L. PATRICK AULD, Magistrate Judge.

This case comes before the undersigned United States Magistrate Judge on Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Docket Entry 56) (hereinafter "Section 2255 Motion"), as amended by his Memorandum of Law in Support of his Motion pursuant to 28 U.S.C. § 2255 (Docket Entry 61) (hereinafter "Supporting Memorandum") and his revised Memorandum of Law in Support of His Motion pursuant to 28 U.S.C. § 2255 (Docket Entry 67) (hereinafter "Revised Supporting Memorandum").[1] For the reasons that follow, the Court should deny (on the merits) all of Petitioner's claims, except his claim that his counsel provided constitutionally ineffective assistance by failing to appeal, as to which claim the Court should defer adjudication pending an evidentiary hearing.

INTRODUCTION

This Court (per then-Chief United States District Judge James A. Beaty, Jr.) entered a Judgment against Petitioner imposing, inter alia, a prison term of 188 months, after his guilty plea to conspiracy to distribute 28 grams or more of cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). (Docket Entry 52; see also Docket Entry 1 (Indictment); Docket Entry 39 (Plea Agreement); Docket Entry dated Apr. 13, 2012 (documenting guilty plea); Docket Entry dated Sept. 5, 2012 (documenting sentencing); Docket Entry 63 (Plea Hrg. Tr.); Docket Entry 64 (Sent'g Hrg. Tr.).) Petitioner did not appeal. (See Docket Entry 56, ¶ 8; see also Docket Entries dated Sept. 5, 2012, to present.) He did, however, file the instant Section 2255 Motion (Docket Entry 56), followed shortly by his Supporting Memorandum (Docket Entry 61).

Petitioner thereafter simultaneously filed a Motion to Amend (Docket Entry 66) and his Revised Supporting Memorandum (Docket Entry 67). The Court (per the undersigned Magistrate Judge) then extended the time for the United States to respond to Petitioner's Section 2255 Motion, [2] while at the same time requiring that, in so responding, the United States address any matters newly-raised in Petitioner's Revised Supporting Memorandum. (See Text Order dated Apr. 9, 2014; see also Text Order dated Mar. 13, 2015 (allowing Petitioner's Motion to Amend by deeming newly-raised matters in his Revised Supporting Memorandum to constitute part of this collateral action).) The United States responded (Docket Entry 71) and, despite notice of his right to reply (Docket Entry 72), Petitioner filed none (see Docket Entries dated Apr. 25, 2014, to present).

DISCUSSION

Petitioner's Section 2255 Motion nominally asserts one ground for relief, but actually identifies three separate claims, i.e., the following alleged instances of constitutionally ineffective assistance of counsel:

1) "counsel allowed [Petitioner] to enter into a plea agreement uninformed of the law in relation to the facts of his case" (Docket Entry 56, ¶ 12(Ground One));

2) "counsel was ineffective for failing to object to the Government's use of [Petitioner's] non-qualifying prior state convictions, used to enhance [his] statutory mandatory minimum sentence and for the guidelines enhancement under U.S.S.G. § 4B1.1 at the sentencing phase" (id.); and

3) "counsel was ineffective for failing to notice a direct appeal, as instructed by [Petitioner]" (id.).

Petitioner's Supporting Memorandum presents a fourth claim, i.e., that "counsel was Constitutionally ineffective, when he failed to admonish the [C]ourt... that after United States v. Booker , 543 U.S. 220 (2005) the United States Sentencing Guidelines were only' advisory... and that it was at liberty to depart both horizontally and vertically (within the [C]areer [O]ffender guidelines) and/or exercise its equitable powers in fashioning a remedy under a non-Guidelines sentence under 18 U.S.C. § 3553(a)[.]" (Docket Entry 61 at 7 (internal brackets and parallel citations omitted).)[3]

As to each of his four ineffective assistance claims, 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).

Guilty Plea Ineffectiveness

Petitioner's Section 2255 Motion contains no factual support for his first claim, i.e., that his counsel provided ineffective assistance in connection with his guilty plea by allowing him to plead guilty while "uninformed of the law in relation to the facts of his case" (Docket Entry 56, ¶ 12(Ground One)). (See id.) Nor do Petitioner's Supporting Memorandum and/or Revised Supporting Memorandum address said claim. (See Docket Entries 61, 67.)[4] Petitioner's guilty plea ineffective assistance claim is thus "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).").

Of particular note, given the nature of this claim (i.e., inadequate advice about a plea), "to satisfy [Strickland's] prejudice' requirement, [Petitioner] 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 56, ¶ 12(Ground One); Docket Entry 61; Docket Entry 67.) Instead, he "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.).

Finally, the record reflects that Petitioner entered a knowing and voluntary guilty plea, pursuant to a written plea agreement that accurately described, inter alia, his rights, the potential penalties, and the sentencing process (see Docket Entry 39 at 1-6) and after a thorough colloquy with the Court that fully satisfied the requirements of Federal Rule of Criminal Procedure 11(b) (see Docket Entry 63 at 3-16). "A defendant's solemn declarations in open court affirming a plea agreement carry a strong presumption of verity, because courts must be able to rely on the defendant's statements made under oath during a properly conducted Rule 11 plea colloquy." United States v. Lemaster , 403 F.3d 216, 221 (4th Cir. 2005) (internal brackets, citations, ellipses, and quotation marks omitted). "Thus, in the absence of extraordinary circumstances, ... a district court should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the [defendant's] ...


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