United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1] and the Government's Motion for Summary Judgment [Doc. 17].
I. PROCEDURAL BACKGROUND
On June 2, 2009, the Petitioner Michael Lee Cutter was charged in a Bill of Indictment with coercing and enticing via computer an individual he believed to be under 18 years old to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). [Criminal Case No. 1:09-cr-00053-MR-DLH, Doc. 7: Indictment]. On July 20, 2009, the Petitioner entered into a written plea agreement with the Government, pursuant to which the Petitioner agreed to plead guilty to the charge contained in the Bill of Indictment. [ Id., Doc. 26: Plea Agreement]. The Petitioner acknowledged in the Plea Agreement that he was subject to a mandatory minimum term of ten years in prison and agreed to waive his right to contest his conviction or sentence on appeal or in a post-conviction proceeding, except on the bases of ineffective assistance of counsel or prosecutorial misconduct. [Id. at 1, 6].
On July 27, 2009, the Honorable Dennis L. Howell, United States Magistrate Judge, conducted the Petitioner's plea colloquy in accordance with Rule 11 of the Federal Rules of Criminal Procedure. During the colloquy, Judge Howell reviewed the elements of the offense to which the Petitioner was pleading guilty, as well as the mandatory minimum sentence of ten years and the maximum sentence of life imprisonment applicable to that offense. [ Id., Doc. 46: Rule 11 Transcript at 10, 11]. After the Petitioner affirmed that he understood both the elements of the offense to which he was pleading guilty and the mandatory minimum and maximum penalties he faced, the Petitioner affirmed: that he understood how the Sentencing Guidelines might apply to his offense; that he understood that he would not have the opportunity to withdraw his guilty plea even if he received a sentence greater than the sentence he expected; and that he was, in fact, guilty of the offense to which he was pleading guilty. [Id. at 9-13]. The Petitioner then affirmed that he had reviewed the terms of his plea agreement with his counsel, including the waiver of his right to appeal either his conviction or sentence except on the bases of ineffective assistance of counsel or prosecutorial misconduct, and that he understood each of these terms. [Id. at 17]. As is relevant to the present motion, the Petitioner further affirmed that he had had ample time to discuss any possible defenses with his counsel and that he was satisfied with the services of his attorney. [Id. at 18]. At the conclusion of the colloquy, Judge Howell found the Petitioner's guilty plea to be knowingly and voluntarily entered. [Id. at 9].
Prior to the Petitioner's sentencing hearing, the probation officer submitted a Presentence Report ("PSR"), in which the probation officer calculated a total offense level of 35, which included a three-level reduction for acceptance of responsibility, and a criminal history category of I, resulting in an advisory Sentencing Guidelines range of between 168 and 210 months' imprisonment. [ Id., Doc. 33: PSR at 5, 6, 10]. The Petitioner's sentencing hearing was held on May 20, 2010. At the beginning of the hearing, the Petitioner affirmed that the answers he provided during his Rule 11 colloquy were true, that he committed the offense to which he had pled guilty, and that he still wished to plead guilty according to the terms of his plea agreement. [ Id., Doc. 47: Sentencing Hrg. Tr. at 5-6]. This Court then accepted the Petitioner's guilty plea as having been knowingly and voluntarily entered. [Id. at 6].
After this Court determined the applicable advisory Sentencing Guidelines range of imprisonment, the Petitioner's trial counsel, Kevin McCants, argued in favor of a sentence of 120 months, the mandatory minimum. [Id. at 23]. In so arguing, Mr. McCants noted that the Petitioner did not specifically seek out a child and that his offense was "a blemish in an otherwise honorable life" that included service in the military. [Id. at 24]. Mr. McCants further noted that Petitioner had been in school for auto body service at the time of the offense but that he had run "into... a problem with drugs, which had really been the only downfall in [his] life." [Id.]. Mr. McCants also informed the Court that Petitioner came from a strong family and that an appointment had been set up for the day after his offense with a drug counselor. [Id.]. At the conclusion of Petitioner's sentencing hearing, this Court imposed a sentence of 168 months' imprisonment, which was at the low end of the Guidelines range. [Id. at 27].
The Petitioner appealed, and the Fourth Circuit affirmed this Court's judgment on July 5, 2011. United States v. Cutter, 452 F.Appx. 344 (4th Cir. 2011). The Fourth Circuit's mandate issued on July 27, 2011. On July 26, 2012, the Petitioner, now represented by different counsel, filed the present motion to vacate, asserting several claims of ineffective assistance of counsel. [Doc. 1]. The Government has responded to the Petitioner's motion and seeks summary judgment as to all of the asserted claims. [Doc. 17].
II. FACTUAL BACKGROUND
A. Offense Conduct
The Petitioner's arrest and conviction arose out of an investigation conducted by the Buncombe County Sheriff's Department into the solicitation of minors for sexual activity over the internet. [See Criminal Case No. 1:09-cr-00053-MR-DLH, Doc. 33: PSR at 3]. On May 18, 2009, Detective Jeff Sluder posed as an 11-year-old female child (the "girl") in an internet chat room and began a chat conversation with the Petitioner. [Id.]. The Petitioner set the tone of the conversation, which quickly became sexual, and the "girl" indicated several times to Petitioner that "she" was 11 years old. [Id.]. The Petitioner stated that he wanted to meet to "hit that, " and when the "girl" asked him to clarify that statement, he responded, "LOL, as in sex in every position imaginable, LOL." [Id.]. When the "girl" asked if it would hurt, or if she would get pregnant, the Petitioner responded that he always wore a condom. [Id.]. The Petitioner also sent pictures of himself to the "girl." [Id.]. The Petitioner then told the "girl" that he was at a hotel in Hendersonville and asked whether she could get a ride to his hotel. [Id.]. The "girl" indicated that she could get a friend to bring her but suggested that they meet at the mall first, after which they agreed to meet at a music store at the Blue Ridge Mall in Hendersonville that same day. [Id.]. The Petitioner stated that he would be wearing jeans and wearing a multi-colored hoodie. [Id.].
Thereafter, Detective Sluder notified a Henderson County Sheriff's Department detective of the meeting that was to occur within the hour, and the detective made contact with the Petitioner at the music store, placing him under arrest. [Id. at 4]. The Petitioner waived his Miranda rights and admitted to being the person who engaged with a person he thought was an 11-year-old girl in a chat room. [Id.]. The Petitioner admitted that he had made "an extremely stupid decision"; when asked what he intended to do with the 11-year-old girl, the Petitioner stated that he intended to have sex with her but did not know if it would have happened. [Id.]. The Petitioner also stated that he had been staying in a local hotel room because he had met a woman from Craiglist at the hotel the evening before and had sex with her, but she had left the room earlier in the morning. [Id.].
B. Petitioner's Statement in Support of Motion to Vacate
In support of his motion to vacate, the Petitioner has submitted a statement, in which he explains the circumstances of his arrest and asserts the alleged deficiencies in his trial counsel's representation. According to the Petitioner, he rented a hotel room in Hendersonville on May 17, 2009, where he met a woman he had agreed to meet, using a Craigslist message board, and had sex with her. [Doc. 1 at 15: Pet'r Statement at ¶¶ 2-8]. After the woman left around 8:00 a.m. that morning, the Petitioner entered a "Yahoo chat room-dating site, " understanding that all persons who used the site were 18 years old. [Id. at ¶¶ 9-11]. The Petitioner states that he began chatting with a "woman" who eventually stated that she was 11 years old, after which he closed the messaging window and ended his conversation with her. [Id. at ¶¶ 12-13]. Thereafter, according to the Petitioner, the same person contacted him and sent him a picture of herself, clearly depicting a woman over the age of 18. [Id. at ¶ 14]. The Petitioner states that he therefore believed the person was roleplaying, and they began a sexual conversation. [Id. at ¶ 15].
The Petitioner states that at the end of their chat, he and the "woman" agreed to meet at a store in the Blue Ridge Mall in Hendersonville. [Id. at ¶ 16]. The Petitioner states that after arriving at the store, he changed his mind about meeting the woman because he had a fiance and was feeling guilty about cheating on her again; however, as he was walking out of the store, a woman called his name. [Id. at ¶¶ 17-18]. Believing the woman to be the person he had chatted ...