United States District Court, M.D. North Carolina
March 30, 2015
GINA OTEY WILSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
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 well as the claim in Ground Four that her "plea was not knowingly, intelligently, and voluntarily entered" (id., ¶ 12.D.), whether such claims challenged her plea directly or the adequacy of her counsel's related advice.
Simply put, "[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] sworn statements." Id. at 221-22. Petitioner has shown no extraordinary circumstances (see Docket Entry 18, ¶ 12.A. & D.; Docket Entries 19, 34, 36, 39) and her foregoing collateral attacks therefore fall short.
Moreover, to the extent Grounds One and Four contend Petitioner received inept counsel regarding her plea, in addition to overcoming her sworn statements knowingly and voluntarily pleading guilty, she "must show that there is a reasonable probability that, but for counsel's errors, [she] 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 18, ¶ 12.A. & D.; Docket Entries 19, 34, 36, 39.) As the United States has noted, at trial, she faced conviction on "[t]he conspiracy offense charged in the indictment [in case number 1:12CR76, which] carried a mandatory minimum sentence of ten years' imprisonment. [By accepting her Plea Agreement, ] Petitioner was instead charged in [an] Information with a violation of 21 U.S.C. § 843(b), an offense that was punishable by not more than four years' imprisonment." (Docket Entry 31 at 11.) In the face of that compelling explanation for her decision to admit guilt to the lesser charge of facilitating a drug deal, rather than to risk trial on the more serious drug conspiracy charge, Petitioner "has provided only conclusory allegations [attacking her plea] 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.).
Nor can Petitioner maintain any claim based on "[d]enial of Safety Valve" (Docket Entry 18, ¶ 12.A.), in regards to the lawfulness of her sentence or the sufficiency of her counsel. The "safety valve" permits "[a] defendant [to] have h[er] base offense level reduced by two levels under [U.S.S.G.] § 2D1.1(b)[ ] if [s]he meets all five criteria set out in U.S.S.G. § 5C1.2(a)." United States v. Jones, 388 F.Appx. 319, 320 (4th Cir. 2010). Petitioner's Plea Agreement did not promise any such reduction (see Docket Entry 3) and explicitly disavowed the existence of any promises outside her Plea Agreement's express terms (id., ¶ 9). Further, "[t]he fifth requirement [for a safety valve reduction] is that, by the time [the defendant] is sentenced, [s]he has truthfully provided to the Government all information and evidence [she] has concerning the offense or offenses. A defendant seeking [a safety valve] reduction... has the burden of proving that [s]he has satisfied [that requirement]." Jones, 388 F.Appx. at 320 (internal brackets and quotation marks omitted) (citing United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997)). Petitioner, however, has not shown that she met that requirement. (See Docket Entry 18, ¶ 12; Docket Entries 19, 34, 36, 39.)
The remaining claim in Ground One asserts in inscrutable fashion that either the Court or Petitioner's counsel unlawfully failed to prevent a "[d]isparity among defendants [sic] sentences[.]" (Docket Entry 18, ¶ 12.A.) In her Memorandum of Law in Support, Petitioner apparently attempts to clarify this claim by stating that, "[h]ad [her] counsel advised her to enter a plea in accordance to the Grand Jury's charge of Conspiracy to Distribute 100 Kilograms or more of Marijuana, as did her similarly situated co-defendants, she would have qualified for the safety valve' [reduction]. Thus, by following her counsel's erroneous advice, she was given a much harsher sentence than her more culpable co-conspirators, thus creating a disparity in sentencing." (Docket Entry 19 at 5.) In fact, as the United States has observed, "the safety valve adjustment is applicable in cases where a defendant has been convicted of a violation of 21 U.S.C. § 843(b)." (Docket Entry 31 at 6-7 (citing United States v. Warnick, 287 F.3d 299 (4th Cir. 2002)). As shown above, "Petitioner did not, however, qualify for the safety valve reduction because she failed to meet the fifth criterion set forth in U.S.S.G. § 5C1.2." (Id. at 7.) Accordingly, any difference between Petitioner's sentence and the sentences of her co-defendants attributable to her lack of a safety valve reduction and their receipt of one does not constitute an "unwarranted sentence disparit[y], " 18 U.S.C. § 3553(a)(6), that either her counsel or the Court should have addressed.
Finally (as to Grounds One and Four), Petitioner's Memorandum of Law in Support of her Section 2255 Motion suggests that the Court did not comply with the mandate of Section 3553(a)(6) to "consider the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct" by pointing to the fact that two of the defendants charged in the Indictment in case number 1:12CR76 received lesser prison sentences and another individual implicated in the conspiracy "went unindicted." (Docket Entry 19 at 5-6.) Said Memorandum, however, makes no effort to compare the conduct to which Petitioner admitted to any record material relating to the conduct of the two defendants in question (see id.); instead, it simply declares in conclusory fashion that Petitioner's "conduct was similar in nature to [the conduct of the unindicted individual]" (id. at 6). "Unsupported, conclusory allegations do not warrant an evidentiary hearing, much less relief." 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.) (citing 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)).
In sum, all of the claims presented in Grounds One and Four (even as developed by Petitioner's other filings) lack merit.
Grounds Two and Three: Ineffective Counsel (Medical and Mental Issues at Sentencing and Parsimony Provision of Section 3553(a))
According to Ground Two of Petitioner's Section 2255 Motion, the Court "failed to properly consider [her] severe medical and mental issues." (Docket Entry 18, ¶ 12.B.) More specifically, the section of her Memorandum of Law in Support that discusses Ground Two asserts that the Court "erred in declining to depart downward for her physical impairments pursuant to U.S.S.G. § 5H.4." (Docket Entry 19 at 7.) That portion of said Memorandum also states: "[Petitioner's] counsel failed to adequately address the need for the [C]ourt to impose a sentence of home detention in order to allow her to continue on her heart monitor and medical care with doctors already familiar with her needs." (Id. at 8; see also id. ("[Petitioner's] counsel failed to adequately present the factors outlined by Section 3553(a)....").) Similarly, Ground Three of Petitioner's Section 2255 Motion complains that the Court "failed to take into consideration [her] mental and emotional, and physical abuse suffered at the hands of her co-defendant and ex-husband." (Docket Entry 18, ¶ 12.C.; see also Docket Entry 19 at 10 ("[Petitioner] suffers from mental and emotional conditions stemming from abuse from her estranged husband and co-defendant....") Lastly, Ground Three seeks relief based on the purported failure of the Court "to adhere to the Spirit of the Law in regard to sentencing... [and] to follow Supreme Court precedence and consider the least amount of imprisonment pursuant to [Section] 3553(a)." (Docket Entry 18, ¶ 12.C.; see also Docket Entry 19 at 11 ("[Petitioner's] counsel should have pursued a lesser sentence for [her] pursuant to § 3553(a).").)
The record conclusively refutes Petitioner's foregoing, unsupported contentions. As an initial matter, prior to Petitioner's sentencing hearing, her counsel filed a Sentencing Memorandum which asked the Court to exercise its "discretion to vary from the [G]uideline recommendation... [and to] sentence [Petitioner]... to a term of probation." (Docket Entry 9 at 13.) In that filing, Petitioner's counsel presented a number of detailed arguments in support of that request, including that:
1) Petitioner "suffers from mental and emotional conditions... [mostly] stem[ming] from relationship issues with her estranged husband and co-defendant" (id. at 3; see also id. at 3-4 ("[P]etitioner describes their former marital relationship as both mentally and physically abusive.... [Probation] would allow [Petitioner] to continue her current treatment...."));
2) Petitioner's "physical conditions, in combination with her other specific offender characteristics warrant a departure downward, at the very least... [if not] an alternative to incarceration altogether" (id. at 5); and
3) "since a central goal of the Sentencing Guidelines is to eliminate sentencing disparity..., [Petitioner should receive] a similar disposition as [two of] her codefendants [who received effectively probationary sentences, because]... she [is] less culpable than [them]" (id. at 12).
Further, at Petitioner's sentencing hearing, her counsel expressly "ask[ed] the Court [to] consider sentencing [Petitioner] to a term of probation" (Docket Entry 29 at 12), based on "her performance on pretrial release" (id.), her "above average employment history" (id.), her history as "a law-abiding person" (id. at 13), "her family ties" and "strong family support system" (id.), "her minor role in the overall conspiracy" (id.), the sentences received by some related defendants (id. at 15-17), her "emotional conditions... [of] depression and anxiety" (id. at 17; see also id. at 17-18 ("I would ask that [the Court] take [Petitioner's] emotional state into consideration as to why perhaps she wasn't as forthcoming as some of the other codefendants.")), and her "physical infirmities that are set out in the [PSR]" (id. at 18). After hearing from the United States (see id. at 23-26) and from Petitioner directly (see id. at 26-28), the Court (per Judge Osteen) "decline[d] the request for a variance" (id. at 28). In so doing, the Court stated "that on these facts it would be very easy to see how [she] could [have] end[ed] up with an 8-, 9-, or 10-year sentence given [her] participation in this conspiracy." (Id. at 30; see also id. ("[L]ooking at the nature and circumstances of the offense... the telephone count... does not fully reflect the facts of [Petitioner's] participation in this very substantial conspiracy in this case.").) Ultimately, the Court concluded "that the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, and provide just punishment requires that a sentence within the advisory guideline range, that is, 48 months, is sufficient but not greater than necessary." (Id. at 30-31; see also id. at 31 ("In light of my responsibility under 18 USC Section 3553, I find that [Petitioner's] conduct in this particular case is too serious to permit or support a probationary sentence in this case.").)
The record thus reflects that Petitioner's counsel sought a variance to a probationary sentence by raising all reasonably available theories (including the very matters now referenced by Petitioner) and the Court obviously considered those arguments, as well as all relevant terms of Section 3553(a) (including the parsimony provision), but reasonably determined that the advisory Guideline imprisonment term of 48 months represented the proper sentence. Under these circumstances, Grounds Two and Three warrant no relief. See generally United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014) ("Any sentence that is within or below a properly calculated Guidelines range is presumptively reasonable."); United States v. Rivera-Santana, 668 F.3d 95, 105 (4th Cir. 2012) ("[The defendant] argues that the district court... failed to consider any mitigating factors or the need to avoid unwarranted sentencing disparities in weighing the § 3553(a) factors.... [A] sentencing court need not explicitly discuss each factor on the record or robotically tick through § 3553(a)'s every subsection.... [I]t is evident that the court deemed the factors argued in mitigation... insufficient to outweigh the aggravating factors. And it was well within the court's discretion to accord more weight to the host of aggravating factors and decide that the sentence imposed would serve the § 3553(a) factors, on a whole." (internal quotation marks omitted)); Hernandez v. United States, Civ. Action No. 09-4563(FLW), 2010 WL 3271530, at *3 (D.N.J. Aug. 17, 2010) (unpublished) ("The [c]ourt finds [the petitioner's] [ineffective assistance] claims without merit because his counsel specifically argued all the factors [the petitioner] advances here.... [I]t is clear that defense counsel competently argued for a variance and was certainly far from being inadequate under the first Strickland prong.").
All of Petitioner's claims fail as a matter of law.
IT IS THEREFORE RECOMMENDED that Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Docket Entry 18) be denied without issuing a certificate of appealability.