United States District Court, E.D. North Carolina, Western Division
AMANUEL S. BEYENE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE
August 23, 2016, Amanuel S. Beyene ("Beyene") moved
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his 96-month sentence [D.E. 76]. On December 2, 2016,
the government moved to dismiss Beyene's section 2255
motion [D.E. 81] and filed a memorandum in support [D.E. 82].
On January 30, 2017, Beyene responded in opposition [D.E.
86]. As explained below, the court grants the
government's motion to dismiss and dismisses Beyene's
section 2255 motion.
2, 2015, pursuant to a plea agreement [D .E. 51 ], Beyene
pleaded guilty to conspiracy to commit access device fraud in
violation of 18 U.S.C. § § 1029(b)(2) and
(c)(1)(A)(ii) (count one), and aggravated identity theft in
violation of 18 U.S.C. §§ 1028A(a)(1) and 2 (count
eight). See [D.E. 50]. On September 2, 2015, at Beyene's
sentencing hearing, the court calculated Beyene's total
offense level to be 19, his criminal history category to be
VI, and his advisory guideline range on count one to be 63 to
78 months' imprisonment, and 24 months' consecutive
imprisonment on count eight. See [D.E. 64] 1. After
thoroughly considering all relevant factors under 18 U.S.C.
§ 3553(a), the court sentenced Beyene to 72 months'
imprisonment on count one, and 24 months' imprisonment on
count eight, to run consecutively. See [D.E. 62] 2. Beyene
did not appeal.
August 23, 2016, Beyene filed his section 2255 motion [D.E.
76]. In his motion, Beyene claims ineffective assistance of
counsel because his sentencing counsel failed to object to a
two-level enhancement under U.S.S.G. § 2B1.1(b)(10)(A)
for relocation of a fraudulent scheme. See Id. 4.
Beyene asks to be resentenced without the enhancement under
U.S.S.G. § 2B1.1(b)(10)(A). See Id. 12.
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 All. 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), affd, 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.
Beyene's ineffective-assistance claim, "[t]he Sixth
Amendment entitles criminal defendants to the effective
assistance of counsel-that is, representation that does not
fell 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, Beyene 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 rely 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
Beyene's ineffective-assistance claim concerning section
2B1.1(b)(10)(A), Beyene 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. Pregent, 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);
United States v. Mikalajunas, 186 F.3d 490, 495-96
(4th Cir. 1999). Thus, the claim fails.
Beyene's claim fails because the court properly applied
the enhancement under section 2B1, l(b)(10)(A), applying the
enhancement under section 2B1.1(b)(10)(A) was consistent with
the plea agreement, and the court properly calculated the
advisory guideline range. See Presentence
Investigation Report [D.E. 60] ¶¶ 11-17, 64, 74,
77; Plea Ag. [D.E. 51] ¶ 5(c). 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.
reviewing the claim presented in Beyene's motion, the
court finds that reasonable jurists would not find the
court's treatment of Beyene's claim debatable or
wrong, and that the claim deserves no encouragement to
proceed any further. Accordingly, the court denies a
certificate of appealability. See 28 U.S.C. § 2253(c);
Miller-El v. Cockrell. 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel. 529 U.S. 473, 484 (2000).
the court GRANTS the government's motion to dismiss [D.E.
81], DISMISSES Beyene's section 2255 motion [D.E. 76],