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Ingram v. United States

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

April 11, 2017



          W. Earl Britt Senior U.S. District Judge

         This matter is before the court on the government's motion to dismiss or, alternatively, for summary judgment on petitioner's ineffective assistance of counsel claims and to place in abeyance petitioner's claim based on Johnson v. United States, 135 S.Ct. 2551 (2015). (DE # 140.) Petitioner, who is represented by appointed counsel, did not file a response to the motion.[1]

         I. BACKGROUND

         In 2012, a jury convicted petitioner of one count of conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base (crack) and a quantity of cocaine, three counts of distribution of cocaine, and one count of distribution of crack; he was found not guilty of using and carrying a firearm during a drug trafficking crime. The court sentenced him to a total term of 360 months imprisonment. Petitioner appealed his conviction and sentence. In 2014, the Fourth Circuit Court of Appeals affirmed. Petitioner then filed a petition for a writ of certiorari, which the Court denied on 6 October 2014.

         On 5 October 2015, petitioner timely filed pro se a 28 U.S.C. § 2255 motion raising ineffective assistance of counsel claims. (DE # 122.) The government filed a motion to dismiss. Petitioner, through counsel, filed an amended § 2255 motion. (DE # 137.) The amended motion incorporates by reference petitioner's initial § 2255 motion and adds a claim based on Johnson. On 10 August 2016, the court denied the motion to dismiss and directed the government to file an answer or other response. (DE # 138.) The government filed the instant motion.


         Because the court will consider affidavits in resolving the government's motion, the court will proceed under the standard for summary judgment.

Summary judgment should be granted when there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The judge may not weigh the evidence but rather must determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All evidence should be viewed in the light most favorable to the nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990). “[I]t is ultimately the nonmovant's burden to persuade [the court] that there is indeed a dispute of material fact. It must provide more than a scintilla of evidence-and not merely conclusory allegations or speculation-upon which a [fact finder] could properly find in its favor.” CoreTel Va., LLC v. Verizon Va., LLC, 752 F.3d 364, 370 (4th Cir. 2014) (citations omitted). “[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.” Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991).

Garrison Prop. & Cas. Ins. Co. v. Rickborn, No. 2:15-CV-4379-PMD, 2016 WL 7451133, at *1 (D.S.C. Dec. 28, 2016) (most alterations in original).

         A. Ineffective Assistance of Counsel Claims

         Petitioner's initial § 2255 motion raises claims based on ineffective assistance of counsel.

         The standard for such a claim is well established.

         “The essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.” Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). In [Strickland v. Washington, 466 U.S. 668, 687 (1984)], the Court identified two necessary components of an ineffective assistance claim: “First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

         Jones v. Clarke, 783 F.3d 987, 991 (4th Cir. 2015).

         In expounding upon the prejudice requirement, the Fourth Circuit has recognized:

         a defendant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” In the specific context of this case, [the petitioner] must establish there is a reasonable probability that, absent the alleged error, the [jury] “would have had a reasonable doubt respecting guilt.” Under Strickland, “[i]t is not enough for [the petitioner] to show that the errors had some conceivable effect on the outcome of the proceeding, ” and “the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently[.]” In short, “Strickland asks whether it is ‘reasonably likely' the result would have been different, ” and the “likelihood of a different result must be substantial, not just conceivable.”

         Id. at 992 (citations omitted) (some alterations in original).

         Petitioner contends that counsel rendered constitutionally ineffective assistance in seven respects and that the cumulative effect of those errors denied him a fair trial. The court addresses each ground in turn.

         1. Failure to Advise Court of Breakdown in Communication

         Petitioner first claims that counsel should have advised the court that there was a total breakdown in communication between them requiring counsel to withdraw before trial. Specifically, he complains that counsel's office did not accept collect telephone calls from the jail where petitioner was incarcerated pretrial. (Pet'r's Mem., DE # 122-1, at 15.) According to petitioner, counsel did not listen to him when he informed counsel that Kino Wooten was incarcerated during the times petitioner allegedly sold drugs in Wooten's residence and refused to consider petitioner's suggestion that his family help counsel locate Wooten and Bruce Douglas as potential witnesses. (Pet'r Aff., DE # 122-1, at 40 ¶¶ 6, 9, 10.) As a result, petitioner contends, counsel failed to adequately investigate or prepare for trial. (See Pet'r's Mem., DE # 122-1, at 15, 17.) The court disagrees.

         Petitioner does not deny that counsel met with him in person prior to trial. (See Webb Decl., DE # 143-1, ¶ 1 (“I met with Petitioner on at least nine (9) occasions from the date of appointment until the commencement of trial.”).) So petitioner and counsel did in fact communicate, albeit not telephonically. While counsel may have disagreed with petitioner's assessment of the evidence in the case and strategies to pursue, such difference of opinions during their meetings does not amount to a complete breakdown in communication such that counsel should have informed the court and sought to withdraw. Also, and as discussed further below in section II.A.4, counsel made a strategic decision not to call Wooten, Douglas, or any other witness for the defense after adequate investigation. The failure to call witnesses for the defense was not based on any lack of communication between petitioner and counsel. Furthermore, counsel's performance at trial indicates that despite whatever disagreements may have existed between petitioner and him, he was adequately prepared and provided petitioner with an adequate defense. Because a complete breakdown in communication did not exist, counsel did not act deficiently by continuing his representation of petitioner, and the government is entitled to summary judgment on this ground for relief.

         2. Failure to Object to Testimony of Detective Dismukes and to Admission of Lab Report

         Petitioner's second and third grounds for relief concern counsel's failure to challenge evidence regarding the analysis of 5.2 grams of cocaine which confidential informant Britt Jaynes obtained by controlled purchase from petitioner on 16 November 2011. (See Pet'r's Mem., DE # 122-1, at 19-24.) Petitioner contends that counsel should have objected to the following testimony from Detective Dismukes:

Q. [D]id you get a report eventually back from CCBI indicating that it was cocaine[?]
A. I did receive information that it had been tested. I did not get the report back from CCBI[2] though.

(Id. at 19 (petitioner's emphasis).) He also argues that counsel should have objected to the admission of the subject lab report, Exhibit 131, through Detective Dismukes. (Id. at 21-23.)

         The detective testified about that report as follows:

Q. You testified that the substances in this case that you seized from the controlled purchases to the search warrant were sent ...

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