United States District Court, W.D. North Carolina, Statesville Division
RICHARD L. VOORHEES, District Judge.
THIS MATTER is before the Court following an evidentiary hearing on a claim of ineffective assistance of counsel raised by Petitioner in his motion to vacate his sentence which he filed pursuant to 28 U.S.C. § 2255. For the reasons that follow, the Court finds that Petitioner has failed to present sufficient evidence to support his claim for relief and it will therefore be denied.
Petitioner was convicted in this district following a jury trial on one count of conspiracy to possess with intent to distribute methamphetamine, cocaine and cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) (Count One), and a separate count of possessing with intent to distribute methamphetamine and aiding and abetting the same, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2 (Count Twenty). Petitioner appealed but the appeal was dismissed upon his appellant counsel's motion in which he contended that Petitioner's claims were more properly considered in a post-conviction proceeding. United States v. Lopez, No. COA 08-5131, Doc. Entry 43-1 (4th Cir. Jan. 29, 2010).
After his criminal judgment became final Petitioner filed a timely Section 2255 motion by and through counsel, and raised claims of ineffective assistance of trial counsel. The Government filed a motion for summary judgment as to all claims in the § 2255 motion. This Court granted the motion on August 27, 2013, and dismissed the § 2255 motion, and Petitioner appealed. On April 30, 2014, the Fourth Circuit filed a per curiam opinion finding that Petitioner was entitled to an evidentiary hearing on one issue: Whether his trial counsel, Mr. George Young, provided ineffective assistance of counsel when he failed to pursue plea negotiations with the Government even though Petitioner, as he maintained, specifically directed him to do so. This alleged failure, as Petitioner's argued, forced him to forgo a possible plea and face trial on the two counts of his indictment for which he was ultimately convicted. See United States v. Lopez, 570 Fed.App'x 291, 292-93 (4th Cir. 2014) (unpublished).
II. EVIDENTIARY HEARING
Petitioner was appointed counsel on remand and an evidentiary hearing was convened where Petitioner was present, testified, and filed several supporting exhibits which were received into evidence without objection. Petitioner also presented the testimony of a former trial attorney, Mr. Roy Wiggins, and Petitioner's mother, Maria Diaz. The Government presented the testimony of Mr. Young who, incidentally, was one of many attorneys that represented Petitioner during his criminal proceedings, and ultimately tried Petitioner's case before a jury.
A. Petitioner's Trial Counsel
Petitioner's first counsel, Mr. Brent O'Conner, made a limited appearance on Petitioner's behalf following the return of the indictment, but he was later allowed to withdraw because Petitioner did not have sufficient funds to retain him. Mr. Marcos Roberts was then appointed and later allowed to withdraw after attorney Christopher Johnson, an attorney from California, made a general appearance. (5:06-CR-00041, Doc. Nos. 71, 130). Attorney Roy Wiggins made an appearance to serve as local counsel pursuant to the Local Rules of this District because Mr. Johnson was admitted Pro Hac Vice. See LCvR 83.1(B)(1). Attorney Samuel Long, who was with the same firm as Mr. Johnson in California, was also admitted Pro Hac Vice. (Id., Doc. No. 174: Order). Mr. Long was later allowed to withdraw for good cause shown, and Mr. Johnson was permitted to withdraw after Mr. Young was retained, and made a general appearance in the case. (Id., Doc. No. 268: Order). Mr. Wiggins was also allowed to withdraw as local counsel.
B. Petitioner's Testimony
1. Direct Examination
In his testimony in the evidentiary hearing, Petitioner details a meeting with Mr. Johnson wherein a plea offer of fourteen years imprisonment was communicated to him in the fall of 2006, but Mr. Johnson advised him to wait for a better offer from the Government. Mr. Long presented Petitioner with a second plea agreement in early 2007, which was for twelve years, but Mr. Long also thought it best to wait for a better offer and Petitioner did not protest this decision. Mr. Wiggins later met with Petitioner in the Mecklenburg County detention center and presented him with a written copy of a plea agreement which had been negotiated by Mr. Long and the Government. Pursuant to this agreement, Petitioner would plead guilty to Count One in his indictment and he would acknowledge that he faced a sentence of no less than five years nor more than 40-years' imprisonment. The agreement also restricted the amount of drugs for which Petitioner agreed he was responsible in the conspiracy charged in Count One. This notable concession limited his involvement in the conspiracy to at least 350 grams but less than 500 grams of methamphetamine which was a substantial departure from the conduct charged in the indictment which alleged that Petitioner and his co-defendants were responsible for (1) at least 500 grams of a substance containing a detectable amount of methamphetamine; (2) at least 50 grams of actual methamphetamine; and (3) at least 5 kilograms of a substance containing a detectable amount of cocaine. (Id., Doc. No. 3: Indictment; Doc. No. 467-2: Long Plea Agreement).
Mr. Wiggins informed Petitioner that it was a good offer and he recommended he sign it because it was likely the best offer the Government would present. Petitioner testified that he wanted to plead guilty after hearing this offer but he first wanted to consult with Mr. Long before reaching a decision. A copy of the plea agreement was left with Petitioner by Mr. Wiggins, however Petitioner never had any further discussions with Mr. Long because Long withdrew from representation.
Mr. Young, an attorney from Texas, was then retained by Petitioner's family and he met with Petitioner in the Mecklenburg County jail. Petitioner testified that at this meeting he inquired whether he could still accept the plea deal presented by Mr. Wiggins for a sentence of five to forty years' imprisonment. According to Petitioner, Mr. Young advised that he would first like to examine the Government's evidence which was provided in discovery and then he could approach the Government about the plea agreement. Mr. Young met with Petitioner again a few days later and Petitioner testified that he was still interested in a plea deal, but Mr. Young told him to wait. Petitioner testified that he was ready to pursue the five to forty year offer because he believed that might be his last chance to plead guilty because no further offers would be forthcoming. Mr. Young met with Petitioner a third time in November 2007, and Petitioner testified that he again asked him about the five to forty year plea offer and Mr. Young informed him that he had just received all of the Government's discovery and that he would begin reviewing it the next day. Petitioner ...