United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
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
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.
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
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)).
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).
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).
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, ¶
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.
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.
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.
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 ...