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McKiver v. United States

United States District Court, M.D. North Carolina

March 18, 2015

JERMAINE LATIMER McKIVER, 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 24) (hereinafter "Section 2255 Motion") and his amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Docket Entry 27) (hereinafter "Amended Section 2255 Motion").[1] For the reasons that follow, the Court should deny or dismiss 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

On November 21, 2012, this Court (per Chief United States District Judge William L. Osteen, Jr.) entered a Judgment against Petitioner imposing, inter alia, a prison term of 188 months, after his guilty plea to possessing a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Docket Entry 19; see also Docket Entry 1 (Indictment); Docket Entry 14 (Plea Agreement); Docket Entry dated May 15, 2012 (documenting guilty plea); Docket Entry dated Aug. 29, 2012 (documenting sentencing).) Petitioner did not appeal. (See Docket Entry 24, ¶ 8; Docket Entry 27, ¶ 8; see also Docket Entries dated Aug. 29, 2012, to present (reflecting no notice of appeal).) However, on December 6, 2013, the Clerk docketed a "Motion for Court to Review Sentencing" (Docket Entry 20) (hereinafter "Original Motion"), that Petitioner dated as signed on November 25, 2013 (id. at 1) and that he submitted in an envelope post-marked on November 26, 2013, and stamped as received by the Clerk on November 27, 2013 (Docket Entry 20-1). Said Motion states: "I have not been able to contact my attorney [] to address the issue in my case; The change in law concerning the enhancements of the Simmon case in 2012 and the Davis case decided in 2013[.]" (Docket Entry 20 at 1 (internal unmatched quotation mark omitted).)

By Order dated December 10, 2013, the Court (per the undersigned Magistrate Judge) treated Petitioner's Original Motion as a collateral attack, struck said Original Motion as procedurally defective, and "stayed" his collateral action for 30 days "to give [him] time to file a corrected motion on the proper § 2255 forms." (Docket Entry 21 at 1-3.) That Order informed Petitioner that he had filed his Original Motion "near the time limit for filing a § 2255 motion and [that] the statute of limitations can be tolled only in very narrow circumstances." (Id. at 2 (citing Holland v. Florida, 560 U.S. 631, 649 (2010)); see also id. at 2 n.2 ("If Petitioner wishes to challenge his conviction, he must use the § 2255 forms supplied by the Court, include all of the claims for relief he wishes to raise, and closely follow the instructions provided. To the extent there are any issues regarding the running of the statute of limitations in this case, the parties can litigate those issues following any refiling by Petitioner.").)

On January 21, 2014, the Clerk docketed Petitioner's instant Section 2255 Motion (Docket Entry 24), which he signed under penalty of perjury as executed and delivered to prison officials for mailing on January 16, 2014 (id. at 9). Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, the Court (again, per the undersigned Magistrate Judge) ordered the United States to respond by April 5, 2014. (Docket Entry 25.) On March 26, 2014, prior to the filing of any such response, the Clerk docketed Petitioner's instant Amended Section 2255 Motion (Docket Entry 27), which he signed under penalty of perjury as executed and delivered to prison officials for mailing on March 20, 2014 (id. at 13).[2] The Court (once more, per the undersigned Magistrate Judge) then ordered the United States to file any response as to both Petitioner's Section 2255 Motion and his Amended Section 2255 Motion by May 27, 2014. (Text Order dated Mar. 28. 2014.) The United States timely responded (Docket Entry 29) and Petitioner timely replied (Docket Entry 31).[3]

DISCUSSION

Section 2255 Motion

In his Section 2255 Motion, Petitioner has asserted one ground for relief, i.e., "Ineffective Assistance of Counsel, " premised solely on the bald allegation that "[his] [c]ounsel failed to have [Petitioner's] indictment dismissed on speedy trial grounds." (Docket Entry 24, ¶ 12(Ground One).) To prevail on a claim of ineffective assistance, 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).

Petitioner's Section 2255 Motion contains no factual support for his claim that his counsel acted ineffectively by failing to obtain a dismissal based on speedy trial principles. (See Docket Entry 24, ¶ 12(Ground One).) Nor do Petitioner's Amended Section 2255 Motion or his Reply address the substance of said claim. (See Docket Entries 27, 31.) Petitioner's speedy trial 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, 2013 WL 4443295, at *6 n.1 (M.D. N.C. Sept. 9, 2013) (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).").[4]

Amended Section 2255 Motion

In his Amended Section 2255 Motion, Petitioner first has presented another ineffective assistance claim, i.e., that his counsel "failed to file an appeal for [him] after [he] informed [his counsel] to challenge to [sic] prior convictions that was [sic] used to enhance [his] sentence...." (Docket Entry 27, ¶ 12(Ground One)(a); see also id., ¶ 12(Ground Two)(c)(7) ("Counsel of record failed to file the appeal after we consulted and we both agreed an appeal was forthcoming.").)[5] "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."); id. at 485 ("[A] defendant, by instructing counsel to perfect an appeal, objectively indicate[s] his intent to appeal and [i]s entitled to a new appeal without any further showing.").

Petitioner's counsel, however, has sworn by affidavit as follows: "After the sentencing hearing I met with [Petitioner] in the offices of the U.S. Marshal for approximately one hour and discussed with him his right to appeal from the [C]ourt's sentence. [Petitioner] informed me that he did not wish to file a notice of appeal on his behalf." (Docket Entry 29-5, ¶ 15 (emphasis added).) Accordingly, resolution of the merits of Petitioner's failure-to-appeal claim requires an evidentiary hearing because "[t]he record in this case sets up a classic factual dispute." Gordon v. Braxton, ___ F.3d ___, ___, 2015 WL 877422, at *4 (4th Cir. 2015).[6]

The United States contends that the Court should not reach the merits of Petitioner's failure-to-appeal claim because it "was not filed within the required one-year limitation period... [and] do[es] not relate back to his [claim in his Section 2255 Motion] because they arise from separate occurrences of both time and type.'" (Docket Entry 29 at 3-4 (quoting United States v. Pittman, 209 F.3d 314, 318 (4th Cir. 2000)) (additional internal quotation marks omitted).) The Court need not now consider the issue of relation-back as to Petitioner's ...


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