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Dschak v. United States

United States District Court, W.D. North Carolina, Asheville Division

June 16, 2015

RYAN MITCHELL DSCHAK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 1:10-cr-00067-MR-1

MEMORANDUM OF DECISION AND ORDER

MARTIN REIDINGER, District Judge.

THIS MATTER is before the Court on Petitioner's original and amended Motion to Vacate, Set Aside or Correct Sentence, filed pursuant to 28 U.S.C. § 2255. [Cv Docs. 1; 3].[1] The Government responded to Petitioner's Motion [Cv Doc. 11], and Petitioner replied thereto. [Cv Doc. 12].

PROCEDURAL BACKGROUND

Petitioner and one Joseph Hendrix were named in an indictment returned by the grand jury for this District on October 5, 2010. [Cr Doc. 1]. Petitioner was charged with three crimes: a Hobbs Act robbery and aiding and abetting the same, in violation of 18 U.S.C. §§ 1951 and 2 (Count One); possession of a firearm during and in relation to a crime of violence and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c) and (2) (Count Two); and possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) (Count Three). [Id.]. Four months later, Petitioner entered into a written plea agreement with the Government, pursuant to which Petitioner agreed to plead guilty to Count Three and the Government agreed to dismiss Counts One and Two. [Cr Doc. 22]. In the plea agreement, Petitioner agreed to waive his right to appeal or challenge in a post-conviction proceeding his conviction or sentence except on the bases of ineffective assistance of counsel or prosecutorial misconduct. [Id.].

On February 14, 2011, the Honorable Dennis L. Howell, United States Magistrate Judge, conducted a hearing in accordance with Rule 11 of the Federal Rules of Criminal Procedure. During this hearing, Petitioner affirmed that he understood the elements of the offense to which he was pleading guilty; that he understood the maximum penalty he faced; that he was in fact guilty of the § 922(g)(1) offense to which he was pleading guilty; that his guilty plea was voluntary and not the result of coercion, threats or promises other than those contained in the plea agreement; and that he knowingly and voluntarily agreed to waive his right to appeal or challenge in any post-conviction action either his conviction or his sentence, except on the bases of ineffective assistance of counsel or prosecutorial misconduct. [Cr Doc. 24]. At the conclusion of the hearing, Judge Howell found Petitioner's plea to have been knowingly and voluntarily entered. [Id.]. On November 17, 2011, this Court sentenced Petitioner to a term of 100 months' imprisonment. [Cr Doc. 54]. The Court entered its judgment on November 23, 2011. [Id.].

Petitioner did not file a direct appeal. Instead, on August 7, 2012, he filed the present motion to vacate his conviction under 28 U.S.C. § 2255. In his motion, Petitioner argues that he is actually innocent of the firearm offense because none of his past convictions (including the conviction alleged in the Indictment) qualify as a "felony" for purposes of § 922(g)(1), citing United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) ( en banc ).[2] [Cv Doc. 1]. In his amended motion to vacate, Petitioner argues that his counsel provided ineffective assistance to him by advising him to plead guilty to the § 922(g)(1) offense when he did not have a predicate felony conviction. [Cv Doc. 3 at 5-6]. He further contends that counsel was ineffective in advising him to plead guilty because he did not in fact possess the firearm at issue. [Id. at 6]. Petitioner also contends that counsel coerced him into pleading guilty. [Id.].

The Government responded to Petitioner's original and amended § 2255 motion on February 21, 2013. [Cv Doc. 11]. In its Response, the Government argues that Petitioner's claims are not cognizable because he waived his right to collaterally attack his conviction or sentence as a part of his plea agreement. [Id. at 4-5]. Alternatively addressing the merits of Petitioner's claims, the Government argues that: (1) Petitioner has a valid felony conviction from the State of Washington, and thus his Simmons claim is without merit; and (2) Petitioner has failed to demonstrate that counsel was ineffective. [Id. at 5-8].

FACTUAL BACKGROUND

The following facts, as recounted in the PSR, are not in dispute. At approximately 3:30 a.m. on the morning of December 29, 2009, Joseph Hendrix entered the Hot Spot convenience store located at 79 Ashland Avenue in Asheville, North Carolina. Hendrix asked to use the restroom and the clerk, Willie Louis Jamison, Jr. allowed him to do so. Hendrix came out of the restroom wearing a blue bandanna on his face and holding a pistol in his hand. He then threatened to kill Jamison and demanded that Jamison give him money from the cash register. Jamison complied and gave Hendrix approximately $150 in U.S. Currency. As Hendrix left the store, he grabbed a bottle of Wild Irish Rose wine from a shelf. Hendrix then got into the front passenger seat of a tan or light brown Ford Taurus that was parked on the west side of the Hot Spot building. [Cr Doc. 48 at 3]. Petitioner then drove Hendrix away from the convenience store in the Ford Taurus. [Cr Doc. 50 at 7].

Following the robbery of the Hot Spot store, Asheville police began investigating the crime and searching for suspects. The police officers' investigation quickly led them to the Hillcrest Apartments where officers observed the Petitioner and Hendrix standing near the back of a brown Ford Taurus matching the description of the getaway vehicle used after the robbery. [Id. at 4]. As the officers approached the two men, both Petitioner and Hendrix fled on foot. Hendrix was able to elude the police that day. Petitioner was caught after a short foot chase but not before Asheville Police Officer Britt saw Petitioner throw an object over a fence which Britt later seized and determined was a 9-millimeter semi-automatic pistol. [Id.].

STANDARD OF REVIEW

Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to 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. The Court has considered the record in this matter and applicable authority and concludes that this matter can be resolved without an evidentiary hearing. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

DISCUSSION

A. Actual ...


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