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McDonald v. United States

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

April 27, 2017

CHARLES STEVEN McDONALD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This matter is before the court on petitioner's motion to vacate, set aside, or correct sentence, made pursuant to 28 U.S.C. § 2255 (DE 78). Also before the court is the government's motion to dismiss or, in the alternative, for summary judgment (DE 88). The issues raised are ripe for ruling.[1]For the reasons that follow, the court denies petitioner's motion to vacate and grants the government's motion.

         BACKGROUND

         On September 3, 2013, the grand jury returned a three-count indictment, charging petitioner with the following: possession with intent to distribute 28 grams or more of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) (Count One); and distribution of a quantity of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) (Counts Two and Three). At his January 6, 2014 arraignment, petitioner pleaded not guilty to the indictment. On February 3, 2014, the government moved to dismiss Count One, and the court granted the motion. Following a two-day jury trial, petitioner was found guilty of Count Two but was acquitted of Count Three. On September 3, 2014, petitioner was sentenced to 210 months' imprisonment. Petitioner appealed, and the Fourth Circuit Court of Appeals affirmed the court's judgment.

         On October 13, 2016, petitioner filed the instant motion to vacate under 28 U.S.C. § 2255, arguing that his attorney provided ineffective assistance of counsel in the following respects: 1) failing to file pretrial or post-trial motions; 2) failing to subpoena petitioner or his family; 3) failing to inform the court that the jury foreman was the brother of an inmate he had a confrontation with at Brunswick County Jail; 4) failing to notify the court that he claimed to have distributed powder cocaine instead of crack cocaine; 5) failing to challenge portions of a video admitted at trial; 6) assuming petitioner was guilty and asking him about serving as an informant; 7) failing to respond when a threatening letter was read during arraignment; 8) rarely coming to visit; 9) failing to meet with petitioner to discuss his Presentence Investigation Report (“PSR”) until the day before sentencing; 10) failing to challenge the advisory guideline range and/or the statutory enhancement under 21 U.S.C. § 851; and 11) failing to act on information petitioner allegedly provided regarding Lawrence McNeil. As a twelfth claim, petitioner argues that he did not understand his charges as addressed during arraignment.

         In its motion, the government argues that petitioner's § 2255 motion should be dismissed for failure to state a claim upon which relief can be granted. In the alternative, the government argues that to the extent the court relies on the affidavit of attorney Geoffrey W. Hosford (DE 94-1), this court should allow summary judgment in favor of the government.

         COURT'S DISCUSSION

         A. Standard of Review

         A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b).

         B. Analysis

         1. Petitioner's claim that he did not understand his charges

         In his twelfth claim, petitioner argues that he did not understand his charges as addressed during arraignment. (DE 78 at 8). In support of this claim, petitioner contends that he specifically informed the court that did not understand the charges. (Id.)

         This claim fails because it is belied by the record. At his arraignment, held on January 6, 2014, petitioner was advised that Counts Two and Three each charged him with the same crime and each had the same penalty. See Jan. 6, 2014 Tr. (DE 70) at 22:22-24. Petitioner was asked if he understood, and he responded, “Somewhat.” Id. at 22:25. The court then proceeded to address, at length, the penalties for Counts Two and Three. Id. at 23:1-19. Following this explanation, petitioner was asked, once again, if he understood. Id. at 23:20. Petitioner responded affirmatively. Id. at 23:21.

         Petitioner is bound by his declarations during arraignment, and his current allegations to the contrary must be rejected. See United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (“[I]n the absence of extraordinary circumstances, . . . allegations in a § 2255 motion that directly contradict the petitioner's sworn statements made during a properly conducted Rule 11 colloquy are always ‘palpably incredible' and ‘patently frivolous or false.'” (citations omitted)); see also Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a strong presumption of verity.”). Consequently, petitioner's twelfth claim must be dismissed.

         2. Petitioner's ineffective assistance of counsel claims

         Petitioner has raised eleven ineffective assistance of counsel claims. See Mot. Vacate (DE 78). In order to establish ineffective assistance of counsel, a petitioner must satisfy a two-pronged test. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, a petitioner must show that the representation “fell below an objective standard of reasonableness.” Id. at 688. The court must be “highly deferential” to counsel's performance and must make every effort to “eliminate the distorting effects of hindsight.” Id. at 689. Therefore, the court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. Under the second prong, a petitioner must show that he was prejudiced by the ineffective assistance by showing “a reasonable probability that, but for ...


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