United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge
October 17, 2016, Anthony Wayne Wiggins ("Wiggins")
moved pursuant to 28 U.S.C. § 2255 to vacate, set aside,
or correct his sentence [D.E. 335] and filed a memorandum in
support [D.E. 336]. On December 5, 2016, the government moved
to dismiss Wiggins's section 2255 motion [D.E. 344] and
filed a memorandum in support [D.E. 345]. On January 31,
2017, Wiggins responded in opposition [D.E. 353]. As
explained below, the court grants the government's motion
to dismiss and dismisses Wiggins's section 2255 motion.
March 13, 2014, a jury found Wiggins guilty of conspiracy to
distribute and possess with intent to distribute 5 kilograms
of cocaine (count one), possession with intent to distribute
28 grams or more of cocaine base (crack) (count six), and
possession of a firearm and ammunition by a convicted felon
(count seven). See [D.E. 196]. On September 3, 2014, at
Wiggins's sentencing hearing, the court ruled on
Wiggins's objections to the Presentence Investigation
Report ("PSR") [D.E. 212] and held that the
enhancements under 21 U.S.C. § 851 applied to Wiggins.
See Sentencing Tr. [D.E. 293] 1-9. The court
calculated Wiggins's total offense level to be 34, his
criminal history category to be V, and bis guideline range to
be mandatory life imprisonment on counts one and six and 120
months' imprisonment on count seven. See Id. at
8-9; [D.E. 271]. After considering all relevant factors under
18 U.S.C. § 3553(a), the court sentenced Wiggins to life
imprisonment on counts one and six, and 120 months'
imprisonment on count seven. See Sentencing Tr. at
appealed [D.E. 273]. On September 29, 2015, the United States
Court of Appeals for the Fourth Circuit affirmed
Wiggins's conviction and sentence. See United States
v. Gomez-Jimenez. 625 F.App'x 602, 603-05 (4th Cir.
2015) (per curiam) (unpublished). On February 29, 2016, the
Supreme Court denied certiorari. See Wiggins v. United
States. 136 S.Ct. 1211 (2016).
October 17, 2016, Wiggins filed his section 2255 motion [D.E.
335] and a memorandum in support [D.E. 336]. In his section
2255 motion, Wiggins makes six claims: (1) ineffective
assistance of counsel because trial counsel failed to object
to the conspiracy charge in count one as violating due
process, [D.E. 335] 4; (2) ineffective assistance of counsel
because trial counsel failed to challenge the enhancement
under 21 U.S.C. § 851 even though the state convictions
in the section 851 notice allegedly were not felonies under
United States v. Simmons. 649 F.3d 237, 243-45 (4th
Cir. 2011) (en banc), [D.E. 335] 5; (3) ineffective
assistance of trial counsel for failing to call Wiggins's
ex-girlfriend Maria Gomez as a witness, [D.E. 335] 6; (4)
ineffective assistance of trial counsel for failing to file a
motion to sever counts one and six from count seven, [D.E.
335] 8; (5) ineffective assistance of trial counsel for
failing to challenge Wiggins's state felony convictions
under United States v. Simmons. 649 F.3d237, 243-45
(4th Cir. 2011) (en banc), and thereby negate the felony
predicate concerning count seven, [D.E. 335] 9; and, (6)
ineffective assistance of trial counsel for failing to
challenge the sufficiency of the evidence, including a
challenge to the interstate nexus required concerning the gun
and ammunition in count seven, [D.E. 335] 10.
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 the legal and factual
sufficiency of a claim. 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), aff'd,
566 U.S. 30 (2012); Giarratano v. Johnson. 521
F.3d298, 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. Reckmever. 900
F.2d 257, at *4 (4th Cir. 1990) (unpublished table decision).
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 Ctv. 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.
motion and supporting memorandum are not models of clarity.
To the extent that Wiggins's claims are based on
something other than alleged ineffective assistance of
counsel and Wiggins failed to raise the claims on direct
appeal, the general rule of procedural default bars Wiggins
from presenting such claims 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.3d 248, 253
(4th Cir. 2012); United States v. Sanders. 247 F.3d
139, 144 (4th Cir. 2001). Furthermore, Wiggins has not
plausibly alleged "actual innocence" or "cause
and prejudice" resulting from the alleged errors 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. Mikalaiunas. 186 F.3d 490, 493-95
(4th Cir. 1999). Accordingly, any such claims fail.
Wiggins'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. 134, 141
(2012); Lafler v. Cooper. 566 U.S. 156, 165 (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, Wiggins 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
Blackledee v. Allison. 431 U.S. 63, 74 n.4 (1977);
United States v. Dyess, 730 F.3d 354, 359-60 (4th
alleges ineffective assistance of counsel because trial
counsel failed to object to the conspiracy charge in count
one as violating due process. See [D.E. 335] 4; [D.E. 336]
8-25. "To obtain a conviction for a drug conspiracy, the
Government must prove the following essential elements: (1)
an agreement between two or more persons to engage in conduct
that violates federal drug law; (2) the defendant's
knowledge of the conspiracy; and (3) the defendant's
knowing and voluntary participation in the conspiracy."
United States v. Green. 599 F.3d 360, 367 (4th Cir.
2010). "Once the Government proves a conspiracy, the
evidence need only establish a slight connection between a
defendant and the conspiracy to support a conviction."
court properly instructed the jury concerning the conspiracy
charged in count one. See [D.E. 299-3] 89-96. Although
Wiggins contends that trial counsel should have moved for a
mistrial as to count one due to insufficient evidence, [D.E.
336] 25, trial counsel did move for acquittal under Rule 29
of the Federal Rules of Criminal Procedure. See [D.E. 299-2]
164-66. The court properly denied Wiggins's Rule 29
motion. See id Thus, there was no deficient performance or
prejudice. See Bobby. 558U.S. at 11-12; Knowles
v. Mirazayance, 556 U.S. Ill. 127-28 (2009);
Strickland. 466 U.S. at 689-90; Morva v.
Zook. 821 F.3d 517, 528-32 (4th Cir. 2016); Powell
v. Kelly. 562 F.3d 656, 670 (4th Cir. 2009).
Accordingly, Wiggins's first claim fails.
alleges ineffective assistance of counsel because trial
counsel failed to challenge the enhancement under 21 U.S.C.
§ 851 even though, he argues, the state convictions
which formed the basis for Wiggins's enhancement under 21
U.S.C. § 851 were not felonies under Simmons.
See [D.E. 335] 5; [D.E. 336] 26-37. According to
Wiggins, the state convictions were not felonies ...