United States District Court, Middle District of North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. Patrick Auld United States Magistrate Judge
This case comes before the undersigned United States Magistrate Judge on Petitioner’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Docket Entry 25) (hereinafter “Section 2255 Motion”). For the reasons that follow, the Court should deny Petitioner’s Section 2255 Motion.
This Court (per now-Chief United States District Judge William L. Osteen, Jr.) entered a Judgment against Petitioner imposing, inter alia, a prison term of 57 months, upon his guilty plea to unlawful presence in the United States following deportation after conviction for an aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(2). (Docket Entry 15; see also Docket Entry 1 (Indictment); Docket Entry 10 (Plea Agreement); Docket Entry dated May 8, 2012 (documenting guilty plea); Docket Entry dated Aug. 16, 2012 (documenting sentencing); Docket Entry 20 (Sent’g Hrg. Tr.); Docket Entry 21 (Plea Hrg. Tr.).) The United States Court of Appeals for the Fourth Circuit affirmed. United States v. Carrizales, 521 F. App’x 184 (4th Cir. 2013) (unpublished). Petitioner thereafter timely filed his instant Section 2255 Motion (Docket Entry 25), the United States responded (Docket Entry 29), and Petitioner replied (Docket Entry 33).
Petitioner’s Section 2255 Motion asserts four grounds for relief:
1) “Petitioner Received Ineffective Assistance of Counsel on His Guilty Plea” (Docket Entry 25, ¶ 12.A. (“Ground One”));
2) “Petitioner Received Ineffective Assistance of Counsel at Sentencing, Counsel Never Told Him about [the Fast Track Program]” (id., ¶ 12.B. (“Ground Two”));
3) “Petitioner Received Ineffective Assistance of Counsel at Sentencing, When Counsel Did Not Object to [the Presentence Investigation Report]” (id., ¶ 12.C. (“Ground Three”)); and
4) “Petitioner Received Ineffective Assistance of Counsel on Direct Appeal, Counsel Know [sic] that Her Issue Is Meritless” (id., ¶ 12.D. (“Ground Four”)).
To make out an ineffective assistance claim, Petitioner must show that his 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 when] . . . it would have been futile for counsel to have done so . . . .”). All four of Petitioner’s ineffective assistance claims fail as a matter of law.
Ground One – Ineffective Assistance for Guilty Plea
As to Ground One, Petitioner has offered this support for his challenge to the sufficiency of his counsel’s representation at the plea stage: “Counsel made it seem like [s]he want [sic] to Defenden [sic] the Petitioner when in fact Counsel only advised the Petitioner is [sic] for him to [t]ell [h]er about some one that he knew that is selling [d]rugs and [s]he will help him get [d]eported [f]ast.” (Docket Entry 25, ¶ 12.A.; see also Docket Entry 33 at 2 (“[C]ounsel only stated on numerous occasions by her own admission on her affidavit, that she wanted [P]etitioner to cooperate with the Government as the only venue of getting a higher [sic] sentence, instead of representing [P]etitioner as the 6th Amendment requires.”).) This attack on the legal assistance Petitioner received in connection with his guilty plea (which he entered via a written plea agreement (see Docket Entry 10) and a judicial colloquy that complied with Federal Rule of Criminal Procedure 11(b) (see Docket Entry 21)) fails as a matter of law, given that Petitioner’s “solemn declarations in open court affirming [his] plea agreement carry a strong presumption of verity, because courts must be able to rely on [such] 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).
Accordingly, “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 such extraordinary circumstances. Instead, as quoted above, Petitioner merely has alleged in unsworn and conclusory fashion that his counsel feigned interest in his case and did nothing but attempt to ...