United States District Court, M.D. North Carolina
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 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 37), as well as for disposition of his Motion Asking for Court Appointed Counsel (Docket Entry 44). For the reasons that follow, the latter Motion will be denied and the Section 2255 Motion should be denied.
This Court (per United States District Judge Catherine C. Eagles) previously entered a Judgment against Petitioner imposing, inter alia, a prison term of 57 months, as a result of his guilty plea to possessing cocaine base in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C) and possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). (Docket Entry 32; see also Docket Entry 10 (Superseding Indictment); Docket Entry 14 (Plea Agreement); Docket Entry dated Aug. 6, 2012 (documenting guilty plea); Docket Entry dated Jan. 4, 2013 (documenting sentencing); Docket Entry 20 (Plea Hrg. Tr.).) Petitioner did not appeal. (See Docket Entry 37, ¶ 8; see also Docket Entries dated Jan. 4, 2013, to present.) He did, however, timely file his instant Section 2255 Motion. (Docket Entry 37.) The United States responded (Docket Entry 41) and Petitioner replied (Docket Entry 45).
Petitioner's Section 2255 Motion asserts these five grounds:
1) "Appointed Counsel gave [Petitioner] false and erroneous information, coercing and inducing [Petitioner] to plead guilty" (Docket Entry 37, ¶ 12(Ground One));
2) "Appointed Counsel  failed to perform a Constitutionally valid investigation of the search warrant and veracity of search warrant application" (id., ¶ 12(Ground Two));
3) "Appointed Counsel  failed to object to or challenge a vindictive [S]uperseding [I]ndictment" (id., ¶ 12(Ground Three));
4) "Appointed Counsel never objected [to] the fact that fabricated evidence had been presented to the Grand Jury surrounding probable cause for the search warrant" (id., ¶ 12(Ground Four)); and
5) "[Petitioner] was improperly enhanced for maintaining a house... [but his] sentencing counsel misunderstood the nature and elements of the enhancement and gave [him] advice not to object to the enhancement, which should have been objected to because none of the elements of the enhancement were proven" (id., attach. p. 3 (text appearing below heading "Ground Five").
"In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. "[T]he right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). To make out an ineffective assistance claim, Petitioner must show that his counsel's performance fell below a reasonable standard for defense attorneys and 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 Two: Ineffective Assistance of Counsel as to Guilty Plea/Suppression Motion
Both in writing (see Docket Entry 14) and via a personal colloquy with the Court that fully complied with Federal Rule of Criminal Procedure 11(b) (see Docket Entry 20 at 5-23), Petitioner pleaded guilty to Counts Three and Six of his Superseding Indictment, which charged him with two offenses committed on January 19, 2012, i.e., possessing 16.9 grams of cocaine base with intent to distribute and possessing a Charles Daly.45 caliber handgun while a felon (see Docket Entry 10 at 2, 3-4). Petitioner's Plea Agreement expressly documents, inter alia, his desire to "enter a voluntary plea of guilty to Counts Three and Six of the Superseding Indictment" (Docket Entry 14, ¶ 2) and his recognition that, "[b]y voluntarily pleading guilty to Counts Three and Six of the Superseding Indictment..., [he] knowingly waive[d] and g[a]ve up his constitutional ...