United States District Court, E.D. North Carolina, Western Division
C. FOX Senior United States District Judge.
matter is before the court on the Government's Motion to
Dismiss [DE-645] George Myron Adams' ("Adams")
pending Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255 [DE-604]. The issues have
been fully briefed, and the matter is now ripe for ruling.
For the reasons addressed below, the Government's Motion
to Dismiss is ALLOWED in part and DENIED in part and
Adams' Motion to Vacate is DENIED.
Factual and Procedural Background
October 24, 2012j Adams was charged in five counts of a
twenty-four count indictment in the Eastern District of North
Carolina as follows: conspiracy to manufacture, distribute,
dispense, and possess with the intent to distribute five
hundred grams or more of a mixture and substance containing a
detectable amount of methamphetamine, in violation of 21
U.S.C. § 846 (Count One); possession of equipment,
chemicals, products, and material with the intent to
manufacture methamphetamine, and aiding and abetting, in
violation of 21 U.S.C. § 843(a)(6) and 18 U.S.C. §
2 (Count Five); possession of pseudoephedrine with the intent
to manufacture a methamphetamine and aiding and abetting, in
violation of 21 U.S.C. § 841(c)(1) and 18 U.S.C. §
2 (Count Six); possession with the intent to distribute five
hundred grams or more of a mixture or substance containing a
detectable amount of methamphetamine and aiding and abetting,
in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2 (Count Seven); and possession of pseudoephedrine
with the intent to manufacture methamphetamine, in violation
of 21 U.S.C. § 841(c)(1) (Count Sixteen). See
Adams' arraignment, held on September 3, 2013, he pled
guilty to Count One of the Indictment pursuant to a written
plea agreement [DE-325]. Adams and the Government agreed that
at sentencing the Government would move to dismiss Counts
Five, Six, Seven, and Sixteen as to Adams only. Id.
at 5. Adams' sentencing was held on February 19, 2014,
and this court sentenced him to 188 months' imprisonment
and a lifetime term of supervised release. See
Judgment [DE-474]. Adams was ordered to pay a $100 special
assessment, a fine in the amount of $7, 300.00, and
restitution in the amount of $2, 479.00. See Id. On
March 4, 2014, Adams filed a Notice of Appeal [DE-486]. On
March 18, 2015, the Fourth Circuit Court of Appeals dismissed
Adams' appeal. See Mar. 18, 2015 Order [DE-534].
February 26, 2016, Adams filed the instant pro se
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255 [DE-604]. In his motion, Adams raises
the following claims: (1) his sentence violates Johnson
v. United States, 135 S.Ct. 2551 (2015); (2) his
attorney provided ineffective assistance of counsel by
failing to inform him of a more favorable plea offer; (3) his
attorney provided ineffective assistance of counsel by
failing to object to his fine; and (4) his attorney provided
ineffective assistance of counsel by failing to object to his
supervised release. On July 11, 2016, the Government filed a
Motion to Dismiss [DE-645], arguing that Adams' motion
should be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6) because he failed to state a claim upon
which relief can be granted.
October 12, 2016, this court found that Adams had stated a
claim for ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), and
the Government had not conclusively shown that Adams was not
entitled to relief on the second claim in his § 2255
motion. See Oct. 12, 2016 Order [DE-687]. The Clerk
of Court was directed to schedule an evidentiary hearing on
Adams' second claim. Although Adams previously had
retained counsel, this court found that he qualified for
appointed counsel, and the Federal Public Defender was
directed to provide representation.
December 29, 2016, this court addressed the second claim of
Adams' § 2255 motion at an evidentiary hearing
[DE-703]. Adams was present and represented by appointed
counsel Elizabeth Dean Hopkins Thomas. The Government was
represented by Assistant United States Attorney Seth Morgan
Wood. Following the evidentiary hearing, both parties filed
supplemental briefing. See [DE-706, -708].
U.S.C. § 2255
filed the instant motion pursuant to 28 U.S.C. § 2255,
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a). With a § 2255 motion, the
petitioner bears the burden of proving the grounds for
collateral attack by a preponderance of the evidence.
Miller v. United States, 261 F.2d 546, 547 (4th Cir.
1958); Hayes v. United States, Nos. 4:13CR70,
4:16CV54, 2017 WL 976624, at *2 (E.D. Va. Mar. 13, 2017).
When deciding a § 2255 motion, the court need not hold a
hearing when "the motion and the files and records of
the case conclusively show that the prisoner is entitled to
no relief." 28 U.S.C. § 2255(b). When conducting
the § 2255(b) review, pro se filings are held
to a less stringent standard. See Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978).
Federal Rule of Civil Procedure 12(b)(6)
purpose of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) is to test the legal sufficiency of the
complaint, not to resolve conflicts of fact or decide the
merits of the action. Edwards v. City of Goldsboro,
178 F.3d 231, 243-44 (4th Cir. 1999). When considering a
motion to dismiss, the court assumes the truth of all facts
alleged in the complaint and the existence of any fact that
can be proved which is consistent with the complaint's
allegations. E. Shore Mkts., Inc. v. J.D. Assocs. Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir. 2000). However,
the "[f]actual allegations must be enough to raise a
right to relief above the speculative level" and the
plaintiff must allege "enough facts to state a claim to
relief that is plausible on its face." Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26
(4th Cir. 2009) (quoting Bell Ail. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007)). "[A] plaintiffs
obligation to provide the 'grounds' of his '
entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S.
at 555 (citations omitted); accord Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Moreover, a court
"need not accept the legal conclusions drawn from the
facts" nor "accept as true unwarranted inferences,
unreasonable conclusions, or arguments." E. Shore
Mkts., 213 F.3d at 180.
Adams has failed to state a claim for relief under
Johnson in his first claim.
first claim, Adams argues that his sentence violates
Johnson. Mot. Vacate [DE-604] at 5. In particular,
Adams contends that his offense of conviction, Count One, a
violation of 21 U.S.C. § 846, and the two guidelines
enhancements, U.S.S.G. §§ 2D1.1(b)(1) and
2Dl.l(b)(13)(C)(ii), are "unconstitutionally
Johnson, the Supreme Court addressed whether
increasing a defendant's sentence based on the residual
clause, contained in 18 U.S.C. § 924(e)(2)(B)(ii),
violates due process. 135 S.Ct. at 2551. The residual clause
provided that an offense was a "violent felony" for
purposes of § 924(e), if it "otherwise involves
conduct that presents a serious potential risk of physical
injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).
The Supreme Court held that "[increasing a
defendant's sentence under the [residual] clause denies
due process of law." Johnson, 135 S.Ct. at
2557. In Welch v. United States, 136 S.Ct. 1257
(2016), the Supreme Court held that Johnson applies
retroactively to cases on collateral review. 136 S.Ct. at
reliance on Johnson is misplaced because he was not
sentenced as an armed career criminal, and he did not receive
a sentence enhancement based on a prior violent felony
conviction. Because Adams has failed to state a claim for
relief under Johnson, his first claim will be
Adams has failed to state a claim of ineffective assistance
of counsel ...