United States District Court, E.D. North Carolina, Western Division
C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE
17, 2016, Wesley Russell Fuller ("Fuller") moved
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his 132-month sentence [D.E. 20]. On July 15, 2016,
the government moved to dismiss Fuller's section 2255
motion [D.E. 24] and filed a memorandum in support [D.E. 25].
On August 8, 2016, Fuller responded in opposition [D.E. 28].
As explained below, the court grants in part and denies in
part the government's motion to dismiss and dismisses
Fuller's section 2255 motion except for his
ineffective-assistance claim concerning trial counsel's
alleged failure to file a notice of appeal as directed.
March 11, 2015, pursuant to a plea agreement [D.E. 10],
Fuller pleaded guilty to conspiracy to distribute and possess
with intent to distribute 500 grams or more of cocaine. See
[D.E. 9]. On June 16, 2015, at Fuller's sentencing
hearing, the court calculated Fuller's total offense
level to be 33, his criminal history category to be III, and
his advisory guideline range to be 168 to 210 months'
imprisonment. See [D.E. 19] 1. After granting the
government's motion under U.S.S.G. § 5K1.1 and
thoroughly considering all relevant factors under 18 U.S.C.
§ 3553(a), the court sentenced Fuller to 132 months'
imprisonment. See [D.E. 18] 2. Fuller did not appeal.
17, 2016, Fuller filed his section 2255 motion [D.E. 20]. In
his motion, Fuller makes six claims: (1) ineffective
assistance of counsel for failing to object at sentencing to
a two-level enhancement under U.S.S.G. § 3C1.2 for
reckless endangerment and to argue that the enhancement
breached the plea agreement; (2) that the enhancement under
U.S.S.G. § 3C1.2 is vague and unconstitutional under
Johnson v. United States. 135 S.Ct. 2551 (2015); (3)
ineffective assistance of counsel for failing to file a
motion to suppress and argue that law enforcement officers
violated the Fourth Amendment while investigating Fuller; (4)
ineffective assistance of counsel for advising Fuller that he
could not transfer his firearms to his father instead of
forfeiting them; (5) ineffective assistance of counsel for
not arguing that Probation incorrectly calculated
Fuller's advisory guideline range in the Presentence
Investigation Report ("PSR"); and (6) ineffective
assistance of counsel by failing to file a notice of appeal
as directed. See id.
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests a claim's legal and
factual sufficiency. See Ashcroft v. Iqbal. 556 U.S.
662, 677-78 (2009); Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555-63, 570 (2007); Coleman v. Md. Court of
Appeals. 626 F.3d 187, 190 (4th Cir. 2010), aff'd,
566 U.S. 320 (2012); Giarratano v. Johnson, 521 F.3d
298, 302 (4th Cir. 2008); accord Erickson v. Pardus,
551 U.S. 89, 93-94 (2007) (per curiam). The government may
challenge the legal sufficiency of a section 2255 petition
through a motion to dismiss under Rule 12(b)(6). See Rule 12,
Rules Governing Section 2255 Proceedings; United States
v. Frady, 456 U.S. 152, 166-68 n.15 (1982); United
States v. Reckmeyer, 900 F.2d 257, at *4 (4th Cir. 1990)
(unpublished table opinion). In considering a motion to
dismiss, a court need not accept a complaint's legal
conclusions. See, e.g.. Iqbal. 556 U.S. at
678. Similarly, a court "need not accept as true
unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano, 521 F.3d at 302
(quotation omitted): see Iqbal, 556 U.S. at 677-79.
Moreover, a court may take judicial notice of public records
without converting a motion to dismiss into a motion for
summary judgment. See, e.g.. Fed.R.Evid.
201; Tellabs. Inc. v. Makor Issues & Rights.
Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cty,
Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). In
reviewing a section 2255 motion, the court is not limited to
the motion itself. The court also may consider "the
files and records of the case." 28 U.S.C. §
2255(b); see United States v. McGill, 11 F.3d 223,
225 (1st Cir. 1993).
Fuller's claim that the reckless-endangerment enhancement
under U.S.S.G. § 3C1.2 is vague and unconstitutional
under Johnson v. United States. 135 S.Ct. 2551
(2015), Fuller failed to raise this claim on direct appeal.
Thus, the general rule of procedural default bars Fuller from
presenting this claim under section 2255. See,
e.g.. Massaro v. United States, 538 U.S. 500, 504
(2003); Bousley v. United States, 523 U.S. 614, 621
(1998); United States v. Fugit, 703 F.3d248, 253
(4th Cir. 2012); United States v. Sanders. 247 F.3d
139, 144 (4th Cir. 2001). Furthermore, Fuller has not
plausibly alleged "actual innocence" or "cause
and prejudice" resulting from the alleged error about
which he now complains. See Bousley, 523 U.S. at
622-24; Coleman v. Thompson. 501 U.S. 722, 753
(1991); Frady. 456 U.S. at 170; United States v.
Pettiford, 612 F.3d 270, 280-85 (4th Cir. 2010);
United States v. Mikalajunas, 186 F.3d 490, 492-95
(4th Cir. 1999). Alternatively, Fuller's vagueness
challenge to section 3C1.2 fails. See Beckles v. United
States, 137 S.Ct. 886, 892-97 (2017).
Fuller's ineffective-assistance claims, "[t]he Sixth
Amendment entitles criminal defendants to the effective
assistance of counsel-that is, representation that does not
fall below an objective standard of reasonableness in light
of prevailing professional norms." Bobby v. Van
Hook. 558 U.S. 4, 7 (2009) (per curiam) (quotations
omitted). The Sixth Amendment right to counsel extends to all
critical stages of a criminal proceeding, including plea
negotiations, trial, sentencing, and appeal. See,
e.g., Missouri v. Frye, 566 U.S. 133, 140 (2012);
Lafler v. Cooper, 566 U.S. 156, 164-65 (2012);
Glover v. United States. 531 U.S. 198, 203-04
(2001). "[Sentencing is a critical stage of trial at
which a defendant is entitled to effective assistance of
counsel, and a sentence imposed without effective assistance
must be vacated and reimposed to permit facts in mitigation
of punishment to be fully and freely developed."
United States v. Breckenridge. 93 F.3d 132, 135 (4th
Cir. 1996); see Glover, 531 U.S. at 203-04. To state
a claim of ineffective assistance of counsel in violation of
the Sixth Amendment, Fuller must show that his attorney's
performance fell below an objective standard of
reasonableness and that he suffered prejudice as a result.
See Strickland v. Washington, 466 U.S. 668, 687-91
determining whether counsel's representation was
objectively unreasonable, a court must be "highly
deferential" to counsel's performance and must
attempt to "eliminate the distorting effects of
hindsight." Strickland. 466 U.S. at 689.
Therefore, the "court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. A
party also must show that counsel's deficient performance
prejudiced the party. See id. at 691-96. A party
does so by showing that there is a "reasonable
probability" that, but for the deficiency, "the
result of the proceeding would have been different."
Id. at 694.
court hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury."
Id. at 695. When analyzing an ineffectiveness claim,
a court may rule on its own familiarity with the case. See
Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977);
United States v. Dyess, 730 F.3d 354, 359-60 (4th
Fuller's ineffective-assistance claims concerning section
3C 1.2, an alleged breach of the plea agreement due to the
enhancement under section 3C1.2, and counsel's failure to
object to the advisory guideline range in the PSR, Fuller
cannot use section 2255 to attack retroactively his advisory
guideline range. See, e.g., United States v.
Foote, 784 F.3d 931, 935-36 (4th Cir. 2015); United
States v. Present, 190 F.3d 279, 283-84 (4th Cir. 1999);
see also Whiteside v. United States, 775 F.3d 180,
183-87 (4th Cir. 2014) (en banc); Mikalajunas, 186
F.3d at 495-96. Thus, the claims fail. Alternatively, the
claims fail because the court properly applied the
enhancement under section 3C1.2, the enhancement under
section 3CI.2 did not violate the plea agreement, and the
court properly calculated the advisory guideline range. See
[D.E. 10] 6-8; PSR [D.E. 13] ¶¶ 4-10, 51, 58.
Accordingly, there was no deficient performance or prejudice.
See, e.g.. Bobby, 558 U.S. at
11-12; Strickland, 466 U.S. at 689-700.
Fuller's ineffective-assistance claim for failing to file
a motion to suppress and argue that law enforcement violated
the Fourth Amendment while investigating Fuller, Fuller's
claim fails because he pleaded guilty. See, e, g.,
Haring v. Prosise, 462 U.S. 306, 320-21 (1987);
Tollett v. Henderson. 411 U.S. 258, 267 (1973).
Alternatively, counsel's failure to file a motion to
suppress did not reflect deficient performance or prejudice
given the weakness of such a Fourth Amendment claim, the
weight of the evidence against Fuller (PSR ¶¶
4-11), and the favorable plea agreement counsel negotiated.
See, e.g., Strickland. 466 U.S. at 689-700; see
also Premo v. Moore, 562 U.S. 115, 123-32 (2011);
Knowles v. Mirazayance, 556 U.S. 111, 127-28 (2009);
Morva v. Zook, 821 F.3d 517, 528-32 (4th Cir. 2016);
Powell v. Kelly, 562 F.3d 656, 670 (4th Cir. 2009).
Fuller's claim concerning advice he received regarding
forfeiture of the firearms, that advice falls comfortably
within the wide range of professionally competent
representation due to the favorable plea agreement. See [D.E.
10]; cf Bobby, 558 U.S. at 11-12; Premo,
562 U.S. at 123-32; Knowles. 556 U.S. at 127-28;
Strickland. 466 U.S. at 690-700; Morva. 821
F.3d at 528-32. Moreover, and in any event, the court did not
enter a forfeiture order. Thus, there was no prejudice.
Fuller contends that his trial counsel was ineffective by
failing to file a notice of appeal as directed. Fuller has
stated a claim. See United States v. Tidd, 582
F.App'x 242, 242 (4th Cir. 2014) (per curiam)
(unpublished); Davis v. Zahradnick,600 F.2d 458,
459-60 (4th Cir. 1979) (per curiam). Accordingly, the court
directs Magistrate Judge Gates to hold an evidentiary hearing
on this claim and to issue a memorandum and recommendation.
See Memorandum and Recommendation, Diaz v. United
States, Nos. 7:09-CR-100-D-3, 7:11-CV-43-D, [D.E. 310]
(E.D. N.C. Nov. 12, 2014) (unpublished), adopted.
2014 WL 7384974 (E.D. N.C. Dec. 29, 2014) (unpublished);