United States District Court, W.D. North Carolina, Charlotte Division
MAX O. COGBURN, Jr., District Judge.
THIS MATTER is before the court on the respondent's Motion to Dismiss (#7) the petitioner's Motion to Vacate, Correct, or Set Aside Conviction and Sentence (#1). After conducting an Initial Review of the petition in accordance with Rule 4 of the Federal Rules Governing Section 2255 Proceedings, the court directed the government to Answer or otherwise respond to the Petition on November 3, 2014. Order (#2). In that Order, the court determined that petitioner had expressed the following colorable claim:
(I) Petitioner received ineffective assistance of trial counsel when counsel failed to offer a timely proffer to the government, in violation of the Sixth Amendment.
Id. at 1. Petitioner also attempted to assert a second claim, wherein he re-asserted his first contention in terms of an Eighth Amendment "cruel and unusual claim." The court determined that in that claim petitioner had not stated a colorable constitutional claim and that such claim was duplicitous of his first claim.
Respondent timely filed its Response (#7) on February 4, 2015, and the court then entered its Order (#8) allowing petitioner an opportunity to file a Reply as provided in Rule 5. Petitioner timely moved (#9) for an extension of that deadline, which the court allowed. Order (#10). Petitioner then timely filed his Reply (#11) (mistakenly captioned as a "Response" to the respondent's Response). Having considered the Petition, the memoranda, and all the pleadings in this and the underlying criminal case, United States v. Boyd, 3:11-CR-277, the court enters the following findings, conclusions, and Order dismissing the petition.
FINDINGS AND CONCLUSIONS
Petitioner was sentenced by this court to 235 months imprisonment based on his plea to a Bill of Information charging him with a Hobbs Act conspiracy, 18 U.S.C. § 1951, and the use and carrying of a firearm that was brandished during or in relation to a crime of violence, 18 U.S.C. § 924(c). The factual basis for that conviction is not disputed: in July and August 2009, Boyd and other individuals, including Cameron Hallman and Shameron Hallman ("the Hallmans"), participated in a series of 11 armed robberies of businesses in this district and the District of South Carolina. Presentence Report (#40), 3:11-CR-277 ("PSR") at 3-6. During several of the robberies, petitioner threatened employees and customers of the businesses with firearms. Id.
It is equally undisputed that between petitioner and the Hallmans there was sentencing disparity; however, such was warranted disparity as the court determined at sentencing. While petitioner received a sentence of 235 months, Cameron Hallman received a 114 month sentence and Shameron Hallman received a 176 month sentence. As the court explained to petitioner during sentencing, both of the Hallmans' sentences were lower than his based on a government-sponsored Motion for Downward Departure.
It is that disparity in sentencing which is at the center petitioner's collateral attack on his sentence. Petitioner contends that after he received a target letter and the court appointed him counsel, he wanted to plead guilty immediately, but that his attorney advised him to wait until he could evaluate the strength of the government's case. Petitioner avers that rather than enter a plea or seek an opportunity to assist, his attorney advised him that he thought the government's case might be weak since he was not immediately arrested, that counsel needed to review the evidence to determine its strength, and that he would request that the government make a "reverse proffer." He contends that counsel's pre-plea strategy was ineffective because it did not afford him, unlike the Hallmans, an opportunity to provide substantial assistance. Petitioner alleges that by the time his counsel secured a plea it was too late as the Hallmans had already cooperated with the government and entered their pleas. The court has accepted as true petitioner's factual averments concerning events that transpired before he entered his plea for the limited purpose of reviewing the government's Motion to Dismiss.
In moving to dismiss, respondent contends that by entering a plea, petitioner has waived his claim of pre-plea ineffective assistance of counsel. The court agrees.
When a "defendant pleads guilty, he waives all non-jurisdictional defects in the proceedings conducted prior to the plea." United States v. Moussaoui , 591 F.3d 263, 279 (4th Cir. 2010). Where there is a plea, what the court is concerned with in conducting a § 2255 review is whether there was any defect which could have rendered that plea unknowing or involuntary as those elements are the lynchpins to a constitutional plea. Where the alleged missteps of counsel do not touch on whether the plea was knowing and voluntary, such a defect is a non-jurisdictional defect. United States v. Torres , 129 F.3d 710, 715 (2d Cir. 1997).
Here, there is no connection between the alleged pre-plea missteps of counsel and the knowing or voluntary basis of the plea as found by the magistrate judge and again by this court at sentencing. Instead, petitioner alleges, as he did at sentencing, that by seeking a reverse proffer and in delaying entry of a plea, he was denied the opportunity to benefit from a government sponsored motion for a downward departure. In essence, ...