United States District Court, Western District of North Carolina, Charlotte Division
MAX O. COGBURN UNITED STALES DISTRICT JUDGE.
THIS MATTER is before the court on the government’s Response (#6), in which it seeks dismissal of petitioner’s Motion to Vacate, Correct, or Set Aside (#1) his sentence. After conducting a preliminary review of the government’s Response, the court entered an Order (#7) providing petitioner with an opportunity to file a Reply. Petitioner has timely filed his Reply and the court has closely reviewed that pleading, along with his petition, in its consideration of the government’s Motion to Dismiss. Petitioner has also requested an evidentiary hearing, which is denied as the petitioner has been able to well present his contentions and the factual issues are adequately resolved by reference to the plea and sentencing transcripts and other materials contained in the underlying criminal case file. United States v. White, 3:12cr13 (hereinafter “3:12cr13”).
FINDINGS AND CONCLUSIONS
I. Petitioner’s Claims
In his Motion to Vacate, petitioner contends that he received ineffective assistance of counsel at sentencing based on his attorney’s alleged failure to object to the sentence this court imposed. In particular, petitioner’s claims stem from this court’s denial of the government’s §5k1.1 request for a downward departure based on the fact in this particular case. Rather than downwardly depart, this court, after considering the §3553(a) factors and giving weight to the assistance petitioner provided, imposed a within guidelines sentence of 140 months, which was substantially lower than the sentence the government argued was appropriate, 151 months.
Petitioner argues that given the substantial assistance he provided the government, he should not have been sentenced within the guidelines range, but should have received a §5k1.1 departure that fell below the advisory guidelines range. In support of his argument, petitioner has cited the court to United States v. Vasquez-Lebron, 582 F.3d 443 (3d Cir. 2009), which held that a § 5K1.1 departure must be below the guidelines range. While the court does not take issue with the decision of Vaquez-Lebron, what petitioner fails to appreciate in this case is that the court did not grant him relief under §5k1.1. Thus, this court was under no obligation to impose a sentence that fell below the advisory guidelines range.
II. Applicable Standard
To establish a claim of ineffective assistance of counsel, a petitioner must show that counsel’s performance was deficient, in that it fell below an objective standard of reasonableness and that he was prejudiced by such constitutionally deficient representation. Strickland v. Washington, 466 U.S. 687, 687-91 (1984). In order to satisfy the performance prong, the petitioner “must show that counsel’s representation fell below an objective standard of reasonableness.” Id., at 687-88. In making this determination, there is a strong presumption that counsel’s conduct was within the wide range of reasonable professional assistance. Id., at 689; see also Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992). The prejudice prong is satisfied by showing that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id., at 694. The petitioner “bears the burden of proving Strickland prejudice.” Fields, 956 F.2d at 1297 (citation omitted). If the petitioner fails to meet this burden, a reviewing court need not consider the performance prong.” Id., at 1290, citing Strickland, 466 U.S. at 697. In considering the prejudice prong of the analysis, the court must not grant relief solely because the petitioner can show that, but for counsel’s performance, the outcome would have been different. Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998), cert. denied, 528 U.S. 855 (1999). Rather, the court “can only grant relief under ... Strickland if the ‘result of the proceeding was fundamentally unfair or unreliable.’” Id., quoting Lockhart v. Fretwell, 506 U.S. 364 U.S. 364, 369 (1993).
A. Ineffective Assistance During the Plea Process
First, the court has considered petitioner’s contention that his counsel misadvised him in the plea process, rendering the waiver of his right to appeal unknowing. Clearly, a criminal defendant has the right to “effective counsel during plea negotiations.” Missouri v. Frye, 132 S.Ct. 1399, 1407-08 (2012); see Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) (same). While there is no constitutional right for a defendant to enter into a plea agreement, see Weatherford v. Bursey, 429 U.S. 545, 561 (1977), and the decision to initiate plea negotiations is ordinarily a strategic decision within the purview of defense counsel, Hawkman v. Parratt, 661 F.2d 1161, 1171 (8th Cir. 1981), counsel is still required to be a “reasonably effective advocate” regarding the decision to seek a plea bargain. Brown v. Doe, 2 F.3d 1236, 1246 (2d Cir. 1993).
Review of the underlying record in the criminal case reveals that during the taking of the plea, petitioner made sworn statements to this court that indicated his plea was knowing and voluntary, that he had agreed to the waivers, and that he was satisfied with the services of his attorney. The court specifically advised petitioner at the time of the plea that his sentence had not yet been determined, that it was within the government’s discretion to determine whether to file a motion to reduce his sentence based on substantial assistance and that the court was not bound by such a motion, and that by pleading guilty he was waiving ...