United States District Court, E.D. North Carolina, Western Division
Earl Britt Senior U.S. District Judge
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.
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.
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.
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).
Ineffective Assistance of Counsel Claims
initial § 2255 motion raises claims based on ineffective
assistance of counsel.
standard for such a claim is well established.
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.”
v. Clarke, 783 F.3d 987, 991 (4th Cir. 2015).
expounding upon the prejudice requirement, the Fourth Circuit
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
at 992 (citations omitted) (some alterations in original).
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.
Failure to Advise Court of Breakdown in
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
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.
Failure to Object to Testimony of Detective Dismukes and
to Admission of Lab Report
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
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
(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.)
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 ...