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Barefoot v. United States

United States District Court, E.D. North Carolina, Western Division

February 10, 2017




         This cause comes before the Court on petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Also before the Court is the government's amended motion to dismiss or in the alternative for summary judgment, as well as petitioner's motion for consideration for appointment of counsel, motion for free transcripts, motion for new trial or in the alternative resentencing, and motion to adjudicate without any further delays. For the reasons that follow, the government's motion is granted, petitioner's § 2255 motion is dismissed, and all remaining motions are denied as moot.


         Petitioner, (petitioner or Barefoot), was sentenced on February 6, 2013, to an aggregate sentence of 180 months' imprisonment following his conviction by a jury on all six counts of a superseding indictment filed in August 2006. The superseding indictment charged petitioner with conspiracy to receive, possess, conceal, store, barter, sell, and dispose of stolen firearms, 18 U.S.C. §§ 371, 922(j) (count one); a substantive stolen firearms offense, 18 U.S.C. § 922(j) (count two); solicitation to commit a crime of violence, 18 U.S.C. § 373(a) (count three); receipt of an explosive device with the knowledge and intent that the explosive would be used to kill, injure, and intimidate other persons and to unlawfully damage and destroy buildings and other real and personal property, 18 U.S.C. § 844(d) (count four); knowing storage of explosive material in a manner not in conformity with regulations, 18 U.S.C. §§ 842(j) and 844(b) (count five); and knowing distribution of explosive materials to an individual under the age of twenty-one, 18 U.S.C. §§ 842(d) and 844(a) (count six). By opinion filed June 9, 2014, the court of appeals affirmed petitioner's convictions on counts one through four but reversed his convictions on counts five and six. United States v. Barefoot, 754 F.3d 226 (4th Cir. 2014). An amended judgment was entered by this Court on July 16, 2014, reflecting that counts five and six had been dismissed; Barefoot's sentence of 180 months' imprisonment remained unchanged by the dismissal of two counts of the superseding indictment.

         On November 16, 2015, petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255. On December 7, 2015, petitioner filed a motion to vacate on the proper forms. In his motion filed December 7, 2015, [1] petitioner raises the following claims for relief: violation of petitioner's Sixth Amendment right to a speedy trial by forcing a court appointed attorney to represent him (ground one); double jeopardy Fifth Amendment violations for being subject to two arrests, two trials, two convictions, and two federal sentences relating to the superseding indictment (ground two); First, Fifth and Fourteenth Amendment due process violations related to a firearm seized from the home of petitioner's son and used to enhance petitioner's sentence (ground three); violation of the statutory Speedy Trial Act (ground four); abuse of discretion by the Court for joining in the prosecution and compromising the trial (ground five); abuse of discretion, confrontation clause for denying petitioner the right to face and confront his accuser and abuse of discretion, ex post facto clause for retrying petitioner for a 2002 offense (ground six); improper voir dire and deprivation of petitioner's right to freedom of religion (ground seven); First Amendment violation arising from the federal and state governments' witch hunt that included the Church of the Nations Knights of the Ku Klux Klan Inc., as well as a due process claim under Brady (ground eight); unlawful sentence (ground nine); government's breach of plea agreement (ground ten); ineffective assistance of counsel at trial and sentencing (ground eleven); Fifth, Sixth, and Fourteenth Amendment violations, illegal search and seizure (ground twelve); and actual innocence, Fifth and Fourteenth Amendment (ground thirteen). Petitioner seeks vacatur of his sentence, resentencing, and a new trial. Petitioner in his papers further seeks recusal of the undersigned. The government has moved for dismissal of petitioner's motion or, in the alternative, entry of summary judgment in its favor on petitioner's claims.[2]


         The Court at the outset addresses petitioner's request for recusal of the undersigned. A judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). "The inquiry is whether a reasonable person would have a reasonable basis for questioning the judge's impartiality, not whether the judge is in fact impartial." In re Beard, 811 F.2d 818, 827 (4th Cir. 1987). "A presiding judge is not, however, required to recuse himself simply because of 'unsupported, irrational or highly tenuous speculation."' United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003) (quoting United States v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998)).

         Petitioner contends that the undersigned is biased against him. However, even remarks by a court "that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases ordinarily do not support a bias or partiality challenge." Liteky v. United States, 510 U.S. 540, 555 (1994). Petitioner has come forward with no evidence or argument which would cause a reasonable person to question the undersigned's impartiality, and his request is therefore denied.

         Rule 12(b)(6) of the Federal Rues of Civil Procedures provides for dismissal of pleadings for failure to state a claim upon which relief can be granted. In order to survive a challenge under Rule 12(b)(6), a petitioner must allege enough facts to state a claim for relief that is facially plausible. Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[V]ague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court." United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (internal quotation and citation omitted). A motion for summary judgment may not be granted unless there are no genuine issues of material fact for trial and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). In determining whether a genuine issue of material fact exists for trial, a trial court views the evidence and the inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

         A majority of the claims in petitioner's thirteen grounds for relief are procedurally barred for failure to raise them on direct appeal. See Bousley v. United States, 523 U.S. 614, 621-22 (1998) (noting that "Habeas review is an extraordinary remedy and 'will not be allowed to do service for an appeal."') (citation omitted). Procedural default may only be excused if a petitioner can show cause and actual prejudice or that he is actually innocent. Id. "To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Id. at 623 (internal quotation and citation omitted).

         Petitioner asserts that his trial and appellate counsel, Mr. Zeszotarski, refused to do as petitioner demanded and adhere to petitioner's wishes as cause for failure to raise these issues on a direct appeal. Assuming for the purposes of this motion that petitioner did in fact request that each of the grounds subject to the procedural bar raised herein be raised on appeal, see United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999) (cause "must turn on something external to the defense, such as . .. denial of effective assistance of counsel"), petitioner cannot demonstrate that his counsel was ineffective for failing to raise the issues.[3]

         A movant is entitled to effective assistance on appeal. Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc). Appellate counsel is to be afforded, however, the presumption that he presented those issues that were most likely to afford relief, and there is no obligation that appellate counsel assert all nonfrivolous issues on appeal. Id. In order to demonstrate prejudice in the context of appellate representation, "a petitioner must establish a 'reasonable probability ... he would have prevailed on his appeal' but for his counsel's unreasonable failure to raise an issue." United States v. Rangel, 781 F.3d 736, 745 (4th Cir. 2015) (citation omitted).

         Petitioner's grounds for relief also contain allegations of ineffective assistance of counsel at the trial level. In order to demonstrate that trial counsel was ineffective, a movant must show (1) deficient performance, meaning that "counsel's representation fell below an objective standard of reasonableness" and (2) resulting prejudice, meaning that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984).

         Grounds One and Four

         Petitioner was unlikely to prevail on appeal on his Sixth Amendment and statutory Speedy Trial Act claims as the record demonstrates that the majority of the delay between petitioner's arrest in 2006 and trial in 2012 was due to petitioner's having been found not competent to proceed, his appeal, and his undergoing competency restoration. [DE 82; 109; 140; 142; 172; 187; 211; 217]. Once determined to be competent to proceed, petitioner's motions to dismiss and to suppress and request to represent himself were adjudicated. [DE 226; 256; 257]. Petitioner and the government both moved to continue the trial date. [DE 239; 269]. Based on the foregoing, it was reasonable for appellate counsel to decline to raise a speedy trial issue on appeal. See Doggett v. United States, 505 U.S. 647, 651 (1992) (factors to be considered when determining whether right to speedy trial has been violated are "whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result."). Petitioner cannot demonstrate cause for failing to raise his first and fourth grounds for relief and, because, as discussed below, petitioner has failed to sufficiently allege that he is actually innocent, these grounds for relief are procedurally barred.

         Ground ...

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