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Sneed v. United States

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

March 8, 2017

SHAQUAN ANTREE SNEED, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND RECOMMENDATION

          James E. Gates, Judge

         This case comes before the court on the petitions[1] by pro se petitioner Shaquan Antree Sneed ("petitioner") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255"). Petitioner filed his first petition (D.E. 44) on 12 November 2013. On 22 October 2014, the court found that the form of the petition did not "substantially follow the form appended to the Rules Governing § 2255 Proceedings and Local Civil Rule 81.2" and directed petitioner to complete and return the appropriate form. D.E. 46. On 9 December 2014, petitioner filed a second petition[2] complying with the court's order. D.E. 51 to D.E. 51-6. The case is also before the court on the government's motion to dismiss or, in the alternative, for summary judgment. D.E. 56. These matters have been briefed (see D.E. 51-1 (pet'r); 57 (gov't)), and were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rules 8(b) and 10 of the Rules Governing Section 2255 Proceedings ("§ 2255 Rules") (see D.E. dated 1 Apr. 2015). For the reasons stated herein, it will be recommended that the government's motion to dismiss be granted and that the petitions be dismissed.

         BACKGROUND

         I. PETITIONER'S CONVICTION AND SENTENCE

         On 10 May 2007, petitioner was charged in a nine-count indictment (D.E. 1) with the following: (1) conspiracy to distribute and possess with the intent to distribute more than 500 grams of cocaine and more than 50 grams of cocaine base (i.e., "crack"), from 2005 to 5 October 2006, in violation of 21 U.S.C. § 846 (count one); (2) distributing a quantity of cocaine and more than five grams of crack, on or about 18 April 2006, in violation of 21 U.S.C. § 841(a)(1) (count two); (3) distributing more than five grams of crack, on or about 21 April 2006, 27 April 2006, 2 May 2006, 11 May 2006, and 18 May 2006, in violation of 21 U.S.C. § 841(a)(1) (counts three through seven, respectively); (4) distributing more than 50 grams of crack, on or about 13 July 2006, in violation of 21 U.S.C. § 841(a)(1) (count eight); and (5) possessing with the intent to distribute a quantity of cocaine, on or about 5 October 2006, in violation of 21 U.S.C. § 841(a)(1) (count nine).

         On 17 July 2007, pursuant to a plea agreement (D.E. 19), petitioner pleaded guilty to count one of the indictment with the remaining counts to be dismissed at sentencing. See D.E. 17. At sentencing on 15 October 2007 (see D.E. 21), the court granted the government's motion for a downward departure (D.E. 20) and sentenced petitioner to a term of 195 months' imprisonment and five years' supervised release (see J. (D.E. 22) 1-3).[3] Counts two through nine were dismissed. J. 1. Petitioner did not appeal his conviction.

         II. PETITIONER'S POST-CONVICTION MOTIONS

         On 1 July 2009, the court entered an order (D.E. 27) granting petitioner's motion (D.E. 25) for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and United States Sentencing Guidelines § 1B1.10(c); lowered his offense level by one level from 35 to 34; and reduced his term of incarceration from 195 months to 175 months. On 23 July 2009, petitioner filed a pro se motion (D.E. 28) seeking reconsideration of the 1 July 2009 order and a two-level reduction in his offense level instead of only the one-level reduction allowed. On 21 August 2009, the court denied the motion. See D.E. 29.

         On 4 November 2011, petitioner filed a pro se motion for a reduction of his sentence under the Fair Sentencing Act of 2010 (D.E. 30) and on 16 November 2011, a motion to modify this motion (D.E. 31). On 11 December 2013, the Federal Public Defender's Office appeared on petitioner's behalf pursuant to Standing Order 1 l-SO-01 (D.E. 38), but was allowed to withdraw its appearance on 4 April 2014 (see D.E. 41 (allowing withdrawal motion at D.E. 40)). On 2 May 2014, the court denied petitioner's motions for a sentence reduction and modification of that motion. See D.E. 43.

         On 22 June 2012, petitioner filed a motion (D.E. 33) to compel the government to file a motion pursuant to Federal Rule of Criminal Procedure 35(b), which provides for reduction of a sentence based on the provision of substantial assistance to the government in investigating or prosecuting one or more other persons. The court denied the motion on 16 August 2016. See D.E. 37. On 12 November 2013, petitioner filed his first § 2255 petition.

         On 4 December 2014, petitioner filed a motion to appoint counsel to determine his eligibility to receive a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). D.E. 49. Petitioner filed his second petition on 9 December 2014. D.E. 51. On 8 May 2015, the Federal Public Defender's Office entered an appearance for petitioner, but withdrew it with leave of court the same day. See D.E. 61 to 63. On 11 May 2015, the court denied petitioner's motion to appoint counsel (see D.E. 65), and on 2 June 2015, petitioner appealed the decision to the Fourth Circuit (see D.E. 67). On 29 July 2015, the Fourth Circuit dismissed petitioner's appeal for failure to prosecute. See D.E. 74.

         III. THE § 2255 PETITIONS

         In his first petition, executed under penalty of perjury, [4] petitioner alleges that: (1) the court erred in imposing a two-level enhancement in his offense level for relevant conduct, namely, possessing a firearm during drug transactions in 2001 (1st Pet. 3) ("Ground 1"); see Presentence Investigation Report ("PSR") ¶ 37; (2) the PSR was wrongfully presented to the court because in making his finding about petitioner's firearm possession, the probation officer improperly relied on the statements about such possession by a convicted felon witness without verifying them (1st Pet. 4) ("Ground 2"); see PSR ¶ 9; and (3) petitioner received ineffective assistance of counsel because his attorney failed: (a) to object to erroneous findings in the PSR, apparently including the finding that petitioner possessed a firearm during drug transactions in 2001; (b) to raise defenses to the probation officer's not verifying the information in the erroneous findings; (c) to investigate the witness to the firearm possession; and (d) to object to the court's reliance at sentencing on the information about petitioner's alleged firearm possession (1st Pet. 4) ("Ground 3").

         Petitioner's second petition consists of a § 2255 petition form (D.E. 51) executed under penalty of perjury, which does not contain petitioner's substantive allegations, and an accompanying memorandum ("pet'r's mem.") (comprising pp. 1-14 of D.E. 51-1) not executed under penalty of perjury, which does set out his allegations as well as argument. Appended as exhibits to petitioner's memorandum are a declaration by him (erroneously denominated an affidavit) (D.E. 51-3); and two emails, each containing a news article or portion thereof (D.E. 51-4; 51-5).

         In his second petition, petitioner asserts allegations different from those in his first petition, as follows: (1) petitioner's guilty plea was involuntary due to the misconduct of an investigating officer, Detective Rose Edmonds (Pet'r's Mem. 2-4) ("Ground 4"); (2) aspects of the crime for which he was sentenced and of the relevant conduct of firearm possession were not proven beyond a reasonable doubt to a jury and were not stipulated to within the plea agreement (Pet'r's Mem. 5-6) ("Ground 5"); and (3) no document in the record demonstrates that he had a felony controlled substance offense as part of his criminal history, and the court therefore abused its discretion in imposing a sentence pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e) (Pet'r's Mem. 7-14) ("Ground 6").

         APPLICABLE LEGAL PRINCIPLES

         I. STANDARD OF REVIEW FOR § 2255 PETITIONS

         Pursuant to § 2255, a prisoner may seek correction or vacation of a sentence on the grounds that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A § 2255 motion must be filed within one year from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the ...

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