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Fagan v. United States

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

April 18, 2017

LAMONT REGINALD FAGAN, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.

         This cause comes before the Court on petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. [DE 51]. The government has moved to dismiss the petition, [DE 55], and the matter is ripe for disposition. For the reasons discussed below, the government's motion to dismiss is granted and petitioner's motion is dismissed.

         BACKGROUND

         On November 17, 2014, petitioner pleaded guilty, pursuant to a plea agreement [DE 35], to conspiracy to distribute and possess with the intent to distribute 28 grams or more of cocaine base (crack), in violation of 21 U.S.C. § 846. On March 17, 2015, the Court sentenced petitioner to 120 months' imprisonment and 5 years' supervised release. [DE 43, 44]. This sentence was below the advisory guideline range of imprisonment recommended in petitioner's presentence investigation report (PSR). [DE 39 at 13, ¶ 69]. Petitioner did not appeal his judgment.

         On April 19, 2016, petitioner filed the instant motion under § 2255 seeking to vacate his sentence and remand for resentencing. [DE 51]. In his motion, petitioner argued that his Sixth Amendment right to effective assistance of counsel was violated because: (1) his counsel failed to object to a two-level offense level increase pursuant to USSG § 2D1.1(b)(1) [DE 51-1 at 3-7]; (2) his counsel was ineffective in advising petitioner to accept a plea agreement stipulation to a particular drug amount [DE 51-1 at 7-8]; and (3) his counsel was ineffective in "deliberately and intentionally [holding petitioner's] case file to prevent him from meeting the one year limitation to file his § 2255" [D.E. 51-1 at 9]. Petitioner also argues that this Court lacked the jurisdiction to rely on "statutory directives" in 21 U.S.C. § 841(b) [D.E. 51-1 at 10].

         DISCUSSION

         "To survive a motion to dismiss pursuant to Rule 12(b)(6), [petitioner's] '[f]actual allegations must be enough to raise a right to relief above the speculative level, ' thereby 'nudg[ing] their claims across the line from conceivable to plausible.'" Aziz v. Alcolac Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Under § 2255(b), [u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court must grant a prompt hearing to determine the issues and make findings of fact and conclusions of law with respect thereto." United States v. Thomas, 627 F.3d 534, 539 (4th Cir. 2010) (internal quotation omitted). However, "vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court." United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).

         In order to demonstrate that the assistance of counsel was ineffective in violation of the Sixth Amendment, a petitioner must show (1) deficient performance, meaning that "counsel's representation fell below an objective standard of reasonableness" and (2) resulting prejudice, meaning that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). In accordance with Strickland, the prejudice prong is evaluated first if the lack of sufficient prejudice alone can dispose of the ineffective assistance claim. Id. at 697. In order to establish Strickland prejudice in the context of a guilty plea, a petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).

         The Court must "judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct, " and "[j]udicial scrutiny of counsel's performance must be highly deferential." Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citing Strickland, 466 U.S. at 689-90)). "Counsel are afforded a strong presumption that their performance was within the extremely wide range of professionally competent assistance." Baker v. Corcoran, 220 F.3d 276, 293 (4th Cir. 2000) (quoting Strickland, 466 U.S. at 689). In considering whether counsel's performance was deficient, a court "must not permit hindsight to distort [its] assessment of counsel's performance, and [it] must appreciate that counsel may choose a trial strategy from within a wide range of acceptable strategies." Clagett v. Angelone, 209 F.3d 370, 380 (4th Cir. 2000).

         Petitioner first argues that his counsel was ineffective when she failed to object to a two-level offense level increase pursuant to USSG § 2D1.1(b)(1) for possession of a firearm during commission of the crime. [DE 51-1 at 3-7]. Petitioner argues that his counsel should have raised this objection because statements and evidence in his PSR were improperly used to justify this enhancement because they were contrary to the rules of evidence, used to prove elements of the crime subject to Sixth Amendment protection, or non-testifying witness statements subject to confrontation clause protection. [DE 51-1 at 6]. The enhancement for use of a firearm was based upon statements from two co-conspirators to officers, one of whom stated that petitioner "always had a handgun during the transactions." [DE 39 at 4, ¶ 13].

         "[A] sentencing court [may] consider 'any relevant information before it, including uncorroborated hearsay, provided that the information has sufficient indicia of reliability to support its accuracy.'" United States v. Powell, 650 F.3d 388, 392 (4th Cir. 2011) (quoting United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010)); USSG § 6A1.3(a) (allowing sentencing courts to consider all relevant and reliable information at sentencing, regardless of admissibility at trial). Courts have long held that the right to confrontation does not apply at sentencing, United States v. Umana, 750 F.3d 320, 346 (4th Cir. 2014), and, similarly, nor do the Federal Rules of Evidence. United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010); Fed.R.Evid. 1101(d)(3) (exempting sentencing proceedings from the Federal Rules of Evidence). A challenge to inclusion of such statements in his PSR under the confrontation clause or the Rules of Evidence would have been meritless, and petitioner's counsel was not ineffective for not making such challenges.

         To the extent petitioner argues his counsel was ineffective for not objecting to the enhancement on the basis that the inclusion of statements in his PSR bypassed his right to a jury trial on those facts which enhanced his sentence, such an argument is without merit. While juries must find any facts that increase either the statutory maximum or minimum sentence to be imposed, "factfinding used to guide judicial discretion in selecting a punishment 'within limits fixed by law'" is not governed by the Sixth Amendment. Alleyne v. United States, 133 S.Ct. 2151, 2161 n.2 (2013) (quoting Williams v. New York, 337 U.S. 241, 246 (1949)). The two-level enhancement for use of a firearm during commission of the crime only guided judicial discretion in imposing a sentence within the statutory limits, and therefore the failure of petitioner's counsel to make such an objection does not constitute ineffective assistance of counsel. For these reasons, petitioner did not allege facts showing prejudice, because petitioner has not shown a reasonable probability that, had counsel challenged the firearms enhancement, petitioner's sentence ultimately would have been lower.

         Finally, counsel's performance must be viewed under a highly deferential standard, and petitioner has failed to state a claim in regard to counsel's performance at sentencing which would suggest that it fell below an objective standard of reasonableness. The papers supplied by petitioner reflect that his counsel believed that there was a preponderance of the evidence to support the enhancement and that objecting to the enhancement would be frivolous and may have ended up hurting petitioner at sentencing. [DE 51-4 at 3]. The decision not to challenge what counsel believed to likely be a meritless claim is a strategic decision and well within the "extremely wide range of professionally competent assistance." Baker, 220 F.3d at 293.

         Petitioner also argues his counsel was ineffective in advising petitioner to accept a plea agreement stipulation to a particular drug amount. [DE 51-1 at 7-8]. Petitioner appears to argue that his counsel should not have advised him to accept the plea bargain because the agreement held him accountable for conduct not listed in the indictment and petitioner argues ...


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