United States District Court, M.D. North Carolina
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD, Magistrate Judge.
This case comes before the undersigned United States Magistrate Judge for a recommended ruling on Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Docket Entry 26) ("Section 2255 Motion"). For the reasons that follow, the Court should deny Petitioner's Section 2255 Motion.
This Court (per United States District Judge Thomas D. Schroeder) entered a Judgment against Petitioner imposing, inter alia, a prison term of 71 months, upon his guilty plea to unlawful presence in the United States following deportation after conviction for a felony in violation of 8 U.S.C. § 1326(a) and (b)(1). (Docket Entry 15; see also Docket Entry 1 (Indictment); Docket Entry 10 (Plea Agt.); Docket Entry dated Nov. 2, 2010 (documenting guilty plea); Docket Entry dated Mar. 3, 2011 (documenting sentencing); Docket Entry 20 (Plea Hrg. Tr.); Docket Entry 21 (Sent'g Hrg. Tr.).) The United States Court of Appeals for the Fourth Circuit affirmed. United States v. Huizar, 457 F.Appx. 271 (4th Cir. 2011). Petitioner then timely filed his Section 2255 Motion (Docket Entry 26), along with a Memorandum in Support (Docket Entry 27). The United States responded (Docket Entry 33) and Petitioner replied (Docket Entry 35). He also filed a motion asking the Court to "take judicial notice of recently held Supreme Court case law [i.e., ]... McQuiggin v. Perkins, [___ U.S. ___, 133 S.Ct. 1924 (2013)], and Alleyne v. United States, [___ U.S. ___, 133 S.Ct. 2151 (2013)]." (Docket Entry 36 at 2.)
Petitioner's Section 2255 Motion asserts two grounds for relief:
1) ineffective assistance of counsel at sentencing (see Docket Entry 26, ¶ 12(Ground One)); and
2) ineffective assistance of counsel on appeal (see id., ¶ 12(Ground Two)).
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).
Petitioner's two ineffective assistance claims concern his counsel's decision not to challenge (at sentencing and on appeal, respectively) the offense level increase under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (which affected his advisory Sentencing Guidelines range) based on his pre-deportation conviction for burglary under California law. (See Docket Entry 26, ¶ 12(Ground One) & (Ground Two); Docket Entry 27 at 1-16.) Both of Petitioner's claims fail as a matter of law.
In that regard, the United States has come forward with evidence that:
1) prior to Petitioner's guilty plea, his counsel recognized that a potential issue existed as to whether or not Petitioner's 1999 California burglary conviction would qualify as a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (and thereby trigger a 16-level increase on the "offense level" axis of his advisory Sentencing Guidelines calculation) and advised Petitioner accordingly (see Docket Entry 33-2, ¶ 5);
2) Petitioner's counsel thoroughly investigated and researched that issue (see id., ¶¶ 6, 9, 16) and "determined that, under Fourth Circuit case law, [said] conviction would meet the definition of a burglary of a dwelling and be considered a crime of violence [under Section 2L1.2(b)(1)(A)(ii), particularly because]... Petitioner's 1999 California criminal complaint contained the language, willfully, unlawfully, and feloniously enter the inhabited dwelling'" (id., ¶ 9); and
3) in light of that determination, Petitioner's counsel did not contest the offense-level increase under Section 2L1.2(b)(1)(A)(ii) at ...