United States District Court, E.D. North Carolina, Western Division
JAMES C. DEVER, III, District Judge.
On December 19, 2014, Wendell Hussey Lloyd, Jr. ("Lloyd") moved pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his 12-month sentence [D.E. 32]. On February 12, 2015, the United States ("government") moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Lloyd's section 2255 motion [D.E. 36]. Alternatively, the government moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment. See id.; [D.E. 37]. On March 10, 2015, Lloyd responded in opposition [D.E. 39]. As explained below, the court grants the government's motion for summary judgment.
On June 2, 2014, Lloyd pleaded guilty to possessing contraband in prison (marijuana) in violation of 18 U.S.C. §§ 1791(a)(2) and (b)(3) (count one), and possessing contraband in prison (tobacco) in violation of 18 U.S.C. §§ 1791(a)(2) and (b)(5) (count two). See [D.E. 1, 28]. Lloyd and the government jointly waived preparation of a Presentence Investigation Report and asked the court to sentence Lloyd on the day of his guilty plea. See [D.E. 24, 25, 28, 29]. The court agreed to do so. See [D.E. 25]. On June 2, 2014, the court sentenced Lloyd to twelve months' imprisonment on count one and six months' imprisonment on count two, to run concurrently, for a total sentence of 12 months' imprisonment. See [D.E. 28] 2. The court ordered the sentences to run consecutively with Lloyd's 188-month sentence that this court imposed on April 17, 2013, following Lloyd's conviction for being a felon in possession of a firearm and ammunition. See id.; see also United States v. Lloyd, No. 5:11-CR-312-D (E.D. N.C. Apr. 17, 2013), [D.E. 57]. Lloyd did not appeal his conviction or sentence concerning his contraband case.
On December 19, 2014, Lloyd filed a section 2255 motion. See [D.E. 32]. In the motion, Lloyd presents two claims of ineffective assistance of counsel. First, he contends that after his sentencing on June 2, 2014, he directed his counsel to file a notice of appeal, but that counsel failed to do so. See id. 4. Second, he claims that counsel improperly failed to object at his sentencing on June 2, 2014, to certain convictions that were used to calculate his criminal history category. See id. 5.
The government filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively, for summary judgment under Rule 56. See [D.E. 36] 1; [D.E. 37] 2-4. Pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975)(per curiam), the court notified Lloyd of the motion, the consequences of failing to response, and the response deadline. See [D.E. 38]. Lloyd responded in opposition. See [D.E. 39]. In this procedural posture, the parties are on notice of the court's ability to convert the motion to dismiss into a motion for summary judgment. See, e.g., Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998); Sager v. Hous. Comm'n of Anne Arundel Cnty., 855 F.Supp.2d 524, 542 (D. Md. 2012); Harlow v. Stansberry, No. 2:08CV558, 2009 WL 2496528, at *2 (E.D. Va. Aug. 14, 2009) (unpublished).
Summary judgment is appropriate when, after reviewing the record taken as a whole, no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247-48 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317.325 C1986Y Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in its pleading, Anderson, 477 U.S. at 248-49, but "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis and quotation omitted). A trial court reviewing a motion for summary judgment should determine whether a genuine issue of material fact exists for trial. Anderson, 477 U.S. at 249. In making this determination, the court must view the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). In reviewing a section 2255 motion to vacate, the court is not limited to the motion itself. The court also may consider "the files and records of the case." 28 U.S.C. § 2255(b); see United States v. McGill, 11 F.3d 223, 225-26 (1st Cir. 1993).
"The Sixth Amendment entitles criminal defendants to the effective assistance of counsel-that is, representation that does not fall below an objective standard of reasonableness in light of prevailing professional norms." Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (per curiam) (quotations omitted). The Sixth Amendment right to counsel extends to all critical stages of a criminal proceeding. See, e.g., Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012); Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012). "[Sentencing is a critical stage of trial at which a defendant is entitled to effective assistance of counsel, and a sentence imposed without effective assistance must be vacated and reimposed to permit facts in mitigation of punishment to be fully and freely developed." United States v. Breckenridge, 93 F.3d 132, 135 (4th Cir. 1996); see Glover v. United States, 531 U.S. 198, 203-04 (2001). To state a claim of ineffective assistance of counsel in violation of the Sixth Amendment, Lloyd must show that his attorney's performance fell below an objective standard of reasonableness and that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687-91 (1984).
The Sixth Amendment imposes a duty upon counsel "to consult with the defendant concerning whether to appeal when counsel has reason to believe... (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.'" United States v. Witherspoon, 231 F.3d 923, 926 (4th Cir. 2000) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 480 QOCHffl: accord United States v. Cooper, 617 F.3d 307, 312-14 (4th Cir. 2010); Miller v. United States, 150 F.Supp.2d 871, 881 (E.D. N.C. 2001). The Supreme Court has "defined the term consult' to mean advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes.'" Miller, 150 F.Supp.2d at 879 (quoting Flores-Orteea, 528 U.S. at 478). "In cases where the attorney consulted with petitioner about an appeal, the attorney performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal.'" Id .; United States v. Peak, 992 F.2d 39, 41-12 (4th Cir. 1993).
In his first ineffective-assistance claim, Lloyd contends that after his sentencing on June 2, 2014, he orally told his counsel to file a notice of appeal, but that counsel failed to do so. See [D.E. 32] 4. In response, Lloyd's former counsel filed an affidavit expressly refuting Lloyd's allegation that he failed to follow Lloyd's instruction to file a notice of appeal. See [D.E. 37-1]. In the affidavit, counsel states:
1.1 am Joseph B. Gilbert, and I was appointed to represent Wendell Hussey Lloyd, Jr., in the United States District Court for the Eastern District of North Carolina.
2.1 met with Mr. Lloyd at the Federal Correctional Complex Burner on May 8, 2014, where we discussed the discovery I had received, and he informed me that he wanted to plead guilty as soon as possible, and to be sentenced the same day as arraignment for possessing contraband in prison. He had previously sent me a typewritten letter containing numerous legal issues, but told me he did not want to pursue them if he could quickly go to court and be sentenced the same day that he pleaded guilty.
3. On June 2, 2014 Mr. Lloyd pleaded guilty to the two count indictment and was sentenced the same date, as he had requested. He received a total sentence of 12 months, and after the hearing I advised him of his appellate rights. He told me that he did not want to appeal, and signed the attached document indicating that he did not want to appeal. Because it is his right to appeal or to choose not to, and because he told me that he did not want to appeal, I did not file an appeal in his case.
4. Mr. Lloyd now claims that I failed to object to his presentence report (PSR). Because he had already received a presentence report from his earlier federal criminal case, and because the court granted his request for arraignment and sentencing on the same date, there was no presentence ...