United States District Court, M.D. North Carolina
MEMORANDUM OPINION 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 52) ("Section 2255 Motion"). For the reasons that follow, the Court should deny the instant Section 2255 Motion.
This Court (per now-Chief United States District Judge William L. Osteen, Jr.) previously entered its Judgment against Petitioner imposing, inter alia, a 121-month prison term, upon a jury's finding of guilt on an Indictment charging him with possessing with intent to distribute 1, 982.4 grams of cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B). (Docket Entry 38; see also Docket Entry 1 (Indictment); Docket Entry 29 (Verdict Form); Docket Entries 44-47 (Trial Tr.); Docket Entries 43, 48 (Sent'g Hrg. Tr.).) The United States Court of Appeals for the Fourth Circuit affirmed. United States v. Rosado, 452 F.Appx. 255 (4th Cir. 2011). Petitioner then timely filed the instant Section 2255 Motion. (Docket Entry 52.) The United States responded (Docket Entry 57) and, despite notice of his right to reply (Docket Entry 58) and an extension of time to do so (Text Order dated Aug. 19, 2013), Petitioner filed none (see Docket Entries dated July 26, 2013, to present).
Petitioner's Section 2255 Motion asserts two grounds for relief: 1) "Ineffective Assistance of Counsel" (Docket Entry 52, ¶ 12(Ground One)); and 2) "Procedural Due Process Violation" (id., ¶ 12(Ground Two)). These claims provide no basis for relief.
As to Ground One, the instant Section 2255 Motion states that Petitioner's "attorney rendered constitutionally ineffective assistance of counsel during the pre-trial phase and his deficient efforts to properly advise Petitioner  during the pre-trial, plea negotiation phase of his case constituted demonstrable prejudicial error." ( Id., ¶ 12(Ground One)(a).) More specifically, Petitioner has alleged (in unsworn fashion) as follows:
[Petitioner] was misinformed by trial counsel on his sentencing exposure and never advised on the benefits of pleading guilty and receiving a three level reduction for acceptance of responsibility.... Trial Counsel  misinformed Petitioner  during the pre-trial phase that "he would receive a 78-month sentence if he lost trial."... Trial Counsel never advised Petitioner to plead guilty or the benefits of pleading guilty in a timely fashion because he was under the erroneous belief that Petitioner  would receive a 78-month sentence no matter what happened in the case and that there was no incentive to plead guilty.
( Id., continuation pp. 10-12; see also id., continuation p. 15 (bearing apparent signature of Petitioner, but without certification of oath or perjury acknowledgment).) According to Petitioner's unsworn contentions, "[i]f [he] had been properly advised about his sentence exposure and the option of an open' guilty plea with its accompanying three-level reduction, his sentencing possibilities would have been dramatically less.... Petitioner should be given the opportunity to tender a guilty plea." ( Id., continuation pp. 12-13.)
By affidavit, Petitioner has sworn "[t]hat [counsel] informed [Petitioner] during the pre-trial phase that [Petitioner] would receive a 78-month sentence, no matter what happened in [Petitioner's] case... [and] guaranteed that [Petitioner] would get a 78-month sentence." ( Id., aff. ¶¶ 2-3 (emphasis added).) Petitioner further has averred that he "would have elected to take an open' plea, accept responsibility, and not go to trial if [he] would have been properly advised on [his] sentence exposure and possibly receiving a three-level reduction for acceptance of responsibility." ( Id., aff. ¶ 5.)
For his part, Petitioner's counsel has sworn by affidavit as follows:
1) during a meeting with Petitioner, "prior to his arraignment and detention hearing[, ] [counsel] explained the statutory penalties applicable in [Petitioner's] case, including the imprisonment range of five to 40 years under 21 U.S.C. § 841(b)(1)(B)" (Docket Entry 57-1, ¶ 3.b.);
2) during a subsequent (second) pre-trial meeting with Petitioner, counsel "again explained the statutory penalties applicable in [Petitioner's] case... [and] explained the sentencing guidelines, including... the possibility of a three-level reduction for acceptance of responsibility" (id., ¶ 3.c.);
3) at that second meeting, Petitioner "told [counsel] that he was not guilty of the crime charged, and that he had no ...