United States District Court, E.D. North Carolina, Southern Division
W. EARL BRITT, Senior District Judge.
This matter is before the court on the government's motion to dismiss petitioner's 28 U.S.C. § 2255 motion. (DE # 98.)
By way of background, in 2013, petitioner pled guilty pursuant to a plea agreement to conspiracy to defraud the United States with respect to claims in violation of 18 U.S.C. § 286 and aggravated identity theft in violation of 18 U.S.C. § 1028A. After allowing the government's motion to downwardly depart from the sentencing guideline range based on U.S.S.G. § 5K1.1, the court sentenced petitioner to a total term of 52 months imprisonment. Petitioner did not appeal.
His § 2255 motion was timely filed on 22 September 2014. (DE # 90.) The court directed the United States Attorney to file an answer or other response to the motion. (DE # 92.) The government filed the instant motion to dismiss in response. Thereafter, the court notified petitioner that it intended to construe the government's motion as one for summary judgment under Federal Rule of Civil Procedure 56. (DE # 102.) The court gave petitioner 30 days to file a response to the government's motion. (Id.) Petitioner's "supplemental" affidavit was filed on 24 February 2015. (DE # 103.) The government has not filed a reply, and the time within which to do so has expired.
In considering a motion for summary judgment, the court "view[s] all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party." T-Mobile Ne. LLC v. City Council of City of Newport News, Va., 674 F.3d 380, 385 (4th Cir. 2012) (quotation and citation omitted). "Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Id.
Petitioner asserts four claims in his § 2255 motion, all alleging ineffective assistance of counsel. Before considering the merits of any of these claims, the court addresses the government's argument that in the plea agreement, petitioner waived some of these claims. Specifically, the government contends that petitioner's third and fourth claims-which allege ineffective assistance of counsel at sentencing-"directly challenge the calculation of Petitioner's advisory guideline range" and, thus, are waived by the terms of the plea agreement. (Mem., DE # 99, at 8.) The court disagrees.
In support of its argument, the government relies on the language in the plea agreement by which petitioner waived his right to appeal "any issues that relate to the establishment of the advisory guidelines range.'" (Id. at 8-9 (emphasis removed) (quoting Plea Agree.) Yet, expressly excluded from the waiver is his right to challenge his conviction or sentence pursuant to § 2255 based upon the ground of ineffective assistance of counsel. (Id. at 9.) And, his claims fall within the scope of that exception. See United States v. Ezzell, No. 07-0385-WS-M, 2009 WL 4016457, at *2-4 (S.D. Ala. Nov. 19, 2009) (denying the government's motion to dismiss a § 2255 motion alleging claims of ineffective assistance of counsel at sentencing because a provision in the plea agreement reserved the petitioner's right to assert ineffective assistance claims, notwithstanding the sentence appeal waiver). The court also rejects the government's somewhat related argument that because petitioner was sentenced below the statutory maximum term of imprisonment, these same two ineffective assistance of counsel claims are not cognizable. See United States v. Murray, No. 97-6735, 1999 WL 187192, at *3 n.6 (4th Cir. Apr. 3, 1999) (per curiam) (recognizing the general rule that "an error raised in the application of the Sentencing Guidelines cannot be raised in a § 2255 proceeding" but noting that the appellant "is able to circumvent the general rule by styling his sentencing claim as an ineffective assistance of counsel claim" (citing Auman v. United States, 67 F.3d 157, 162 (8th Cir. 1995)).
Turning to the merits of petitioner's claims,
To establish a claim of ineffective assistance of counsel, a defendant must show (1) that "counsel's performance was deficient, " and (2) that "the deficient performance prejudiced the defense." To satisfy the deficiency prong, the defendant must show that counsel's performance "fell below an objective standard of reasonableness." "Judicial scrutiny of counsel's performance must be highly deferential." There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, " and "that, under the circumstances, the challenged action might be considered sound trial strategy."
Under the prejudice prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." There must be "a probability sufficient to undermine confidence in the outcome" of the trial. However, a defendant is not required to establish that "counsel's deficient conduct more likely than not altered the outcome of the case."
United States v. Rangel, No. 13-7445, slip op. at 11-12 (4th Cir. Mar. 31, 2015) (citations omitted).
Petitioner first claims that
I told my attorney to challenge my sentence, but as of the date of this motion, I have yet to receive any notice or letter regarding the pursuit of such endeavor. In fact, had he explained to me how to appeal or ...