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Derring v. United States

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

July 31, 2015



Robert J. Conrad, Jr., United States District Judge

THIS MATTER is before the Court on Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255, (Doc. No. 1), on Petitioner’s Motion Seeking the Relief Sought in 2255 Motion Due to Response Failing to Deny or Admit Claims, (Doc. No. 14), on Petitioner’s “Motion for Default Judgment, or in the Alternative Summary Judgment” (Doc. No. 15), and on Petitioner’s Motion to Expedite, (Doc. No. 16).


On October 9, 2010, officers with the North Carolina State Highway Patrol recovered a firearm from a vehicle driven by Petitioner after Petitioner was stopped for speeding in Charlotte, North Carolina. (Crim. Case No. 3:11cr179, Doc. No. 61 at 23-28: Trial Tr.). Through a records check, the officer who completed the stop learned that the vehicle driven by Petitioner was a rental vehicle that had been reported stolen and that Petitioner did not have a valid driver’s license. (Id. at 25-26). Law enforcement officers arrested Petitioner for possession of a stolen vehicle and conducted a routine inventory search of the car. (Id. at 27). During the search, officers recovered a nine-millimeter, Hi-Point Luger handgun from a shoebox in the trunk. (Id. at 28; 38; 69). Although Petitioner initially denied that the weapon was his, when officers began to run a records check on the firearm, Petitioner admitted that the firearm belonged to him. (Id. at 31; 39).

On June 21, 2011, a grand jury in the Western District of North Carolina charged Petitioner with a single count of possession of a firearm by a person who had previously been convicted of an offense punishable by a term of imprisonment greater than one year, 18 U.S.C. § 922(g)(1). (Id., Doc. No. 1: Indictment). Before trial, Petitioner’s court-appointed counsel Aaron E. Michel filed a motion to suppress the firearm that was recovered. (Id., Doc. No. 11: Motion for Leave to File Motion to Suppress). In support of the motion to suppress, counsel presented evidence that, as a result of the same traffic stop on October 9, 2010, the State of North Carolina had also charged Petitioner with possession of a firearm by a felon, but the state prosecutor subsequently dismissed the charge based on the state prosecutor’s assertion that “[t]he gun was located and seized during an improper search.” (Id., Doc. No. 11-2 at 2). Petitioner’s counsel attached the state court’s notice of dismissal to the motion to suppress and specifically urged this Court to follow the state’s lead and dismiss Petitioner’s federal charges. (Id., Doc. No. 11-1 at 4) (“The State of North Carolina dismissed the state stolen property charge because the car was not stolen and dismissed the firearm charge because the firearm was located and seized during an improper search. This Court should do the same.”). Counsel also moved to dismiss the indictment, arguing that Section 922(g) violates the Second Amendment and exceeds the Government’s power under the Commerce Clause. (Id., Doc. No. 15: Motion to Dismiss). This Court denied both of Petitioner’s motions. (Id., Doc. Nos. 14; 19: Orders).

Following a jury trial, Petitioner was convicted of the charge against him. (Id., Doc. No. 22: Jury Verdict). This Court sentenced Petitioner to 92 months of imprisonment, a term at the low-end of the range advised by the United States Sentencing Guidelines. (Id., Doc. No. 50: Judgment). Petitioner appealed, arguing as his sole contention that the evidence presented at trial was insufficient to convict him because the Government did not prove that the item he possessed met the statutory definition of a firearm, primarily that it was capable of expelling projectile by the action of an explosive. United States v. Derring, 539 F. App’x 114 (4th Cir. 2013). The Fourth Circuit found that Petitioner’s contention was without merit and that court affirmed Petitioner’s conviction on September 3, 2013. James S. Weidner, Jr., represented Petitioner on appeal.

Petitioner placed the instant motion to vacate in the prison mail system on January 13, 2014, and it was stamp-filed in this Court on January 16, 2014. Petitioner asserts four grounds in support of his motion. First, he contends that the performance of his trial counsel was constitutionally deficient based on seventeen alleged acts and omissions before, during, and after his trial. Second, he contends that his appellate counsel was constitutionally deficient for failing to contend on appeal that Petitioner’s trial counsel had been constitutionally deficient. Third, Petitioner contends that the Government engaged in prosecutorial misconduct because it did not introduce evidence that state charges against Petitioner for firearm possession had previously been brought and dismissed and because the Government reminded the jury during its closing argument that Petitioner had stated he possessed his firearm for protection. Fourth, Petitioner contends that this Court engaged in judicial misconduct by denying his motion to suppress.


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. After having considered the record in this matter, the Court finds that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).


A. Ineffective Assistance of Counsel Claim

1. Ineffective Assistance of Trial Counsel

The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions the accused has the right to the assistance of counsel for his defense. See U.S. CONST. amend. VI. To show ineffective assistance of counsel, Petitioner must first establish deficient performance by counsel and, second, that the deficient performance prejudiced Petitioner. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In making this determination, there is “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689; see also United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010). Furthermore, in considering the prejudice prong of the analysis, the Court “can only grant relief under . . . Strickland if the ‘result of the proceeding was fundamentally unfair or unreliable.’” Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). Under these circumstances, the petitioner “bears the burden of affirmatively proving prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the petitioner fails to meet this burden, a “reviewing court need not even consider the performance prong.” United States v. Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), opinion vacated on other grounds, 218 F.3d 310 (4th Cir. 2000). As noted, Petitioner raises seventeen instances in which he contends that his trial counsel was ineffective before, during, and after Petitioner’s trial. For the following reasons, Petitioner’s motion and the record conclusively establish that none of the seventeen grounds that he purports to identify in support of his ineffective assistance theory establish that his trial attorney was constitutionally deficient.

First, Petitioner’s trial attorney was not constitutionally deficient for failing to move to dismiss Petitioner’s indictment on the ground that the state firearm charges against him were dismissed.[1] (Doc. No. 1-1 at 6-7: Mem.). Petitioner’s attorney filed the proper motion to challenge the search that led to the Section 922(g) charge-a motion to suppress the evidence obtained from the search. (Crim. Case No. 3:11cr179, Doc. No. 11). Indeed, Petitioner’s trial counsel specifically argued in support of the motion to suppress that the State of North Carolina had dismissed the state firearm charge based on the state prosecutor’s opinion that the firearm was seized during an improper search. (Id. at 4). This Court denied Petitioner’s motion to suppress; thus, any further motion to dismiss the indictment based on the search would have been meritless. Accordingly, trial counsel’s decision not to file a motion to dismiss the indictment on the ground that the state prosecutor had dismissed the state firearm charge was objectively reasonable. See Truesdale v. Moore, 142 F.3d 749, 756 (4th Cir. 1998) (“It is certainly reasonable for counsel not to raise unmeritorious claims.”).

Second, Petitioner’s trial attorney was not constitutionally deficient for failing to file a motion for “discovery/exculpatory evidence, ” which Petitioner contends would have revealed that the state firearm charge against him had been dismissed for reasons related to an improper search. (Doc. No. 1-1 at 7-8). This Court entered an order days after Petitioner was indicted, requiring the Government to disclose to Petitioner all discoverable material, including exculpatory evidence or information. (Crim. Case No. 3:11cr179: Doc. No. 4). Petitioner’s attorney could not be reasonably expected to file a motion for relief to which Petitioner was already entitled. Moreover, contrary to what his motion suggests, Petitioner did receive documents from the North Carolina state court indicating that one of his state charges was dismissed because a “gun was located and seized during an improper search, ” and, as the Court has already discussed, ...

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