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Wiggins v. United States

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

May 4, 2017

ANTHONY WAYNE WIGGINS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JAMES C. DEVER III Chief United States District Judge

         On 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.

         I.

         On 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 12-17.

         Wiggins 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 See United States v. Gomez-Jimenez. 625 F.App'x 602, 603-05 (4th Cir. 2015) (per curiam) (unpublished).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).

         On 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.

         A 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. 1993).

         Wiggins's 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.

         As for 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 (1984).

         When 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.

         "[A] 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 Cir. 2013).

         Wiggins 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." Id.

         The 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.

         Wiggins 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 ...


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