United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD, Magistrate Judge.
This case comes before the undersigned United States Magistrate Judge for a recommended ruling on Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Section 2255 Motion") (Docket Entry 18). For the reasons that follow, the Court should deny Petitioner's Section 2255 Motion.
This Court (per Chief United States District Judge William L. Osteen, Jr.) previously entered a Judgment against Petitioner imposing, inter alia, a prison term of 48 months, as a result of her guilty plea to using a communication facility to cause/facilitate the distribution of cocaine hydrochloride and marijuana, in violation of 21 U.S.C. § 843(b). (Docket Entry 11; see also Docket Entry 1 (Information); Docket Entry 2 (Waiver of Indictment); Docket Entry 3 (Plea Agreement); Docket Entry dated May 17, 2012 (documenting guilty plea); Docket Entry dated Sept. 12, 2012 (documenting sentencing); Docket Entry 28 (Plea Hrg. Tr.); Docket Entry 29 (Sent'g Hrg. Tr.).) Petitioner did not appeal. (See Docket Entry 18, ¶ 8; see also Docket Entries dated Sept. 12, 2012, to present.) She did, however, timely file her instant Section 2255 Motion (Docket Entry 18), along with a Memorandum of Law in Support (Docket Entry 19). The United States responded (Docket Entry 31) and Petitioner replied (Docket Entry 34).
More than three months after the United States filed its Response to Petitioner's Section 2255 Motion, by letter addressed to Judge Osteen, which Petitioner dated August 24, 2014, and which the Clerk docketed on August 27, 2014 ("August 2014 Letter"), Petitioner identified what she described as "some concerns that the Court may have been mislead [sic] by [ ] the AUSA [Assistant United States Attorney] in [Petitioner's] case." (Docket Entry 39 at 1.) The August 2014 Letter purports to compare various aspects of Petitioner's Plea Hearing Transcript, Sentencing Hearing Transcript, and Presentence Report ("PSR") to a document filed in a related case (i.e., Factual Basis in Support of Guilty Pleas, United States v. Shepherd, 1:12CR76, Docket Entry 57 (M.D. N.C. May, 14, 2012)). (See Docket Entry 39 at 1-5; see also Docket Entry dated May 17, 2012 (identifying Shepherd as related case).) In the conclusion of her August 2014 Letter, Petitioner asked that those comparisons "be added to the record with respect to [her Section] 2255 [M]otion." (Docket Entry 39 at 5.)
Petitioner's Section 2255 Motion asserts these four grounds:
1) "Variance & Ineffective Counsel" based on an alleged "[v]ariance between the elements presented to the [G]rand Jury, and elements and statute [Petitioner] pled guilty under [as well as] [d]enial of Safety Valve[, ] [d]isparity among defendants [sic] sentences [and] [l]ack of evidence, intent or knowledge, [which] led [Petitioner] to plead guilty to a crime she did not commit, and was never charged by the Grand Jury" (Docket Entry 18, ¶ 12.A. (internal parenthetical numbers omitted));
2) "Ineffective Counsel" related to the "Court['s] fail[ure] to properly consider [Petitioner's] severe medical and mental issues" (id., ¶ 12.B.);
3) "Ineffective Counsel" because the "[C]ourt failed to adhere to the Spirit of the Law in regard to sentencing as set forth by the Supreme Court of the United States[, ]... failed to take into consideration [Petitioner's] mental and emotional, and physical abuse suffered at the hands of her co-defendant and ex-husband... [and] failed to follow Supreme Court precedence and consider the least amount of imprisonment pursuant to [18 U.S.C. §] 3553(a)" (id., ¶ 12.C. (internal parenthetical numbers omitted)); and
4) "Ineffective Counsel" premised on the allegation that Petitioner's "plea was not knowingly, intelligently, and voluntarily entered" (id., ¶ 12.D.).
To make out an ineffective assistance claim, Petitioner must show that her 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); see also Oken v. Corcoran, 220 F.3d 259, 269 (4th Cir. 2000) ("[C]ounsel [i]s not constitutionally ineffective in failing to [take an action where]... it would have been futile for counsel to have done so....").
Grounds One and Four: Variance and Ineffective Counsel (Safety Valve, Sentencing Disparity, and Invalid Guilty Plea)
In Ground One, Petitioner initially complains of a "[v]ariance between the elements presented to the [G]rand Jury, and [the] elements and statute [she] pled guilty under." (Docket Entry 18, ¶ 12.A.) This claim (whether viewed as a challenge to the lawfulness of her plea or as an assertion that her counsel provided ineffective assistance) fails as a matter of law because Petitioner knowingly waived indictment and pleaded guilty to an Information, via both a written agreement and a judicial colloquy that fully satisfied Federal Rule of Criminal Procedure 11(b). (See Docket Entry 2 at 1; Docket Entry 3, ¶¶ 2-5, 6.d.; Docket Entry 28 at 8-30.) Those circumstances also defeat the claim in Ground One that Petitioner "plead[ed] guilty to a crime she did not commit, and [for which she] was never charged by the Grand Jury" (Docket Entry 18, ¶ 12.A.), as ...