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 the Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. [Doc. 1].
On June 1, 2010, the Petitioner was named in a Bill of Indictment along with twelve other persons and charged with a drug conspiracy in one count and using a communications facility to commit the drug conspiracy in a second count. [Criminal Case No. 1:10-cr-32-MR ("CR") Doc. 3]. As to the charged conspiracy, the Indictment alleged that it involved 50 or more grams of cocaine base and more than 5 kilograms of cocaine hydrochloride thus subjecting Petitioner to potential imprisonment of not less than 10 years or more than life in accordance with (then applicable) 21 U.S.C. § 841(b)(1)(A).
[Id.]. On July 19, 2010, the Government filed a 21 U.S.C. § 851 Information notifying Petitioner that he faced enhanced punishment due to his 1994 North Carolina felony drug conviction. [CR Doc. 140]. One month later, on August 19, 2010, Petitioner and his counsel executed Petitioner's plea agreement. [CR Doc. 167]. The Petitioner appeared before the Honorable Dennis L. Howell, United States Magistrate Judge, on October 7, 2010, and entered a plea of guilty to the drug conspiracy charge alleged in Count One of the Indictment pursuant to Petitioner's written plea agreement. [CR Docs. 169; 383].
Prior to the Petitioner's sentencing, a United States probation officer prepared a Presentence Report. [CR Doc. 261]. Based upon the Petitioner's drug quantity stipulation in his plea agreement, the probation officer determined that Petitioner's Base Offense Level under the Guidelines was level 34. [Id. at 10]. In arriving at the Petitioner's total offense level, however, the probation officer concluded that Petitioner was a Career Offender. Petitioner's Career Offender offense level (37) was reduced by three levels because Petitioner accepted responsibility for his offense, resulting in a total offense level of 34. [Id. at 9-10]. When Petitioner's total offense level of 34 was coupled with his Career Offender criminal history category of VI, the Petitioner's advisory Guidelines range of imprisonment became 262 to 327 months. [Id. at 16].
The Court conducted the Petitioner's sentencing hearing on July 7, 2011. [CR Doc. 384]. At the hearing, the Petitioner's counsel objected to the probation officer's conclusion that Petitioner qualified for sentencing as a Career Offender asserting that the Court should find his two predicate offenses had been consolidated and thus should serve as only one qualifying predicate. [Id. at 7]. After hearing argument from both sides, the Court found by a preponderance of the evidence that Petitioner's two predicate offense had been separated by an intervening arrest and had not been consolidated by the state court. Accordingly, the Court concluded the Petitioner met the criteria for the Career Offender provisions and overruled the Petitioner's objection thereto. [Id. at 9]. The Court adopted the facts contained in the PSR and determined that the Petitioner's applicable Guidelines range was 262 to 327 months. [Id. at 10].
Prior to Petitioner's sentencing hearing, the Government filed a departure motion. [CR Doc. 307]. The Court asked to hear from the Government's counsel concerning her departure motion. [CR Doc. 384 at 10]. Following the Government's departure explanation, the Petitioner gave his allocution. [Id. at 20-24]. The Court granted the Government's motion, and, after considering the 18 U.S.C. § 3553(a) factors, the Court sentenced Petitioner to a 168-month term of imprisonment. [Id. at 63-64].
The Court entered its Judgment on July 13, 2011. [CR Doc. 313]. Approximately two months later, Petitioner filed a habeas motion alleging his counsel was ineffective for not perfecting Petitioner's appeal from his criminal conviction. [CR Doc. 344]. Without requesting a response from the Government or Petitioner's former counsel, the Court granted Petitioner's motion, vacated its original Judgment, and entered a new Judgment from which Petitioner could appeal. [CR Doc. 345]. The Court entered its Amended Judgment October 26, 2011, and the Petitioner appealed therefrom. [CR Docs. 347; 351]. The United States Court of Appeals for the Fourth Circuit affirmed Petitioner's conviction and sentence in an unpublished opinion on August 21, 2012. [CR Doc. 391]. Petitioner did not file a petition for writ of certiorari in the Supreme Court.
On November 18, 2013, Petitioner filed the instant motion pursuant to 28 U.S.C. § 2255 by delivering it to the Bureau of Prisons mail facility at FCI Allenwood where he then resided. [Doc. 1 at 19]. In his motion, the Petitioner alleges his counsel was ineffective by failing to provide him with proper legal advice before he tendered his guilty plea. Petitioner contends, therefore, that he has suffered a Sixth Amendment deprivation as explained in Missouri v. Frye, 132 S.Ct. 1399 (2012).
STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings" in order to determine whether a petitioner is entitled to any relief. If a petitioner's motion is not dismissed after this initial review, the Court must direct the Government to respond. Id . The Court must review the Government's answer, if any, in order to determine whether an evidentiary hearing is warranted under Rule 8(a). Having considered the record in this matter, the Court finds it is clear that Petitioner is not entitled to relief; therefore, an evidentiary hearing is not required. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
Petitioner's basis for the present motion is set ...