United States District Court, E.D. North Carolina, Eastern Division
AND MEMORANDUM AND RECOMMENDATION
JAMES E. GATES, Magistrate Judge.
This case comes before the court on the motion (D.E. 45) ("petition") of pro se petitioner McCoy Richardson ("petitioner") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255"), the government's motion (D.E. 53) to dismiss the petition, and petitioner's motion (D.E. 59) for appointment of counsel. The petition and motion to dismiss were referred to the undersigned for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rules 8(b) and 10 of the Rules Governing Section 2255 Proceedings ("§ 2255 Rules"). ( See 3d D.E. dated 6 Sept. 2013). The motion for appointment of counsel was referred for disposition pursuant to 28 U.S.C. § 636(b)(1)(A). ( See 2d D.E. dated 22 Sept. 2014). These matters have been fully briefed. For the reasons stated herein, petitioner's motion for appointment of counsel will be denied, and it will be recommended that the government's motion to dismiss be granted and that the petition be dismissed.
I. Petitioner's Conviction
On 25 October 2011, petitioner was charged in a four-count indictment (D.E. 1) with one count of conspiracy to distribute and possess with the intent to distribute more than 28 grams of cocaine base ( i.e., "crack") in violation of 21 U.S.C. § 841(a)(1) (ct. 1) and three counts of distribution and possession with the intent to distribute a quantity of crack in violation of 21 U.S.C. § 841(a)(1) (cts. 2-4). On 12 April 2012, petitioner pleaded guilty (D.E. 28) to count 1 pursuant to a plea agreement (D.E. 31). On 18 July 2012, he was sentenced to 150 months' imprisonment and 5 years' supervised release, and counts 2-4 were dismissed pursuant to the plea agreement. (J. (D.E. 42) 1-3). Petitioner did not appeal his conviction, and, on 20 May 2013, he filed the petition now before the court.
II. Petitioner's Claims
Petitioner asserts that his guilty plea was rendered fundamentally unfair because the prosecutor: (1) knowingly allowed and encouraged Greenville Police Department ("GPD") Detective Rose Edmonds ("Edmonds") to testify falsely before a grand jury regarding a certain amount of crack (Pet. 4; Pet.'s Mem. 1, 3-5); and (2) failed to disclose to petitioner certain information regarding Edmonds' criminal background in violation of Brady v. Maryland, 373 U.S. 83 (1963) (Pet. 4; Pet.'s Mem. 1, 3-5). Each of these claims will be addressed in turn below.
I. Applicable Legal Principles
A. Standard of Review for § 2255 Petitions
Pursuant to 28 U.S.C. § 2255, a prisoner may seek correction or vacation of a sentence on the grounds that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). "In a § 2255 proceeding, the burden of proof is on petitioner to establish his claim by a preponderance of the evidence." Toribio-Ascencio v. United States, Nos. 7:05-CR-00097-FL, 7:08-CV-211-FL, 2010 WL 4484447, at *1 (E.D. N.C. 25 Oct. 2010) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)). Generally, an evidentiary hearing is required under 28 U.S.C. § 2255 "[u]nless it is clear from the pleadings, files, and records that the prisoner is not entitled to relief." United States v. Rashaad, 249 Fed.Appx. 972, 973 (4th Cir. 2007) (citing Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970)).
B. Motions to Dismiss under Rule 12(b)(6) in § 2225 Proceedings
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of claims for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A court may consider a motion to dismiss pursuant to Rule 12(b)(6) challenging the legal sufficiency of a § 2255 petition. See United States v. Reckmeyer, No. 89-7598, 1990 WL 41044, at *4 (4th Cir. 2 Apr. 1990); see also Walker v. True, 399 F.3d 315, 319 (4th Cir. 2005) (vacating district court's order allowing the government's motion to dismiss petitioner's § 2254 petition because the district court did not properly apply the Rule 12(b)(6) standard when it failed to assume all facts pleaded by petitioner to be true and considered material not included in the petition); § 2255 Rule 12 (expressly allowing the application of the Federal Civil Rules where "they are not inconsistent with any statutory provisions or these [§ 2255] rules"); Fed.R.Civ.P. 81(a)(4) (providing that the Federal Rules of Civil Procedure may be applied in § 2255 proceedings where a particular practice has not been specified by § 2255 and where such practice has "previously conformed to the practice in civil actions").
A motion to dismiss should be granted only if "it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). In analyzing a Rule 12(b)(6) motion, a court must accept as true all well-pled allegations of the challenged pleading. Nemet Chevrolet Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (court must accept as true all factual allegations of the complaint). All reasonable factual inferences from the allegations must be drawn in plaintiff's favor. Kolon Indus., Inc., 637 F.3d at 440 (citing Nemet Chevrolet Ltd., 591 F.3d at 253). However, case law requires that the factual allegations create more than a mere possibility of misconduct. Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing Iqbal, 556 U.S. at 679). Likewise, a pleading purporting to assert a claim is insufficient if it offers ...