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Battle v. United States

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

May 8, 2017

TAVARIS DELINO BATTLE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JAMES C. DEVER III Chief United States District Judge

         On June 30, 2016, Tavaris Delino Battle ("Battle") moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence [D.E. 418]. On August 29, 2016, Battle filed an amended section 2255 motion [D.E. 421], a motion to appoint counsel [D.E. 422], a motion to expand the record [D.E. 423], and a motion for a hearing [D.E. 424]. On October 27, 2016, the government moved to dismiss Battle's section 2255 motion [D.E. 432] and filed a memorandum in support [D.E. 433]. On November 16, 2016, Battle responded in opposition [D.E. 435]. As explained below, the court grants the government's motion to dismiss and dismisses Battle's section 2255 motion.

          I.

         On February 3, 2014, pursuant to a plea agreement, Battle pleaded guilty to conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base (crack) (count one) and to using, carrying, and discharging a firearm in furtherance of a drug-trafficking crime and aiding and abetting (count nine). See [D.E. 156, 158, 375]. On November 18, 2014, at Battle's sentencing hearing, the court calculated Battle's total offense level to be 43, his criminal history category to be VI, and his advisory guideline range to be life on count one and 120 months' imprisonment on count nine to run consecutively. See [D.E. 367] 1; Sentencing Tr. [D.E. 373] 33. After thoroughly considering all relevant factors under 18 U.S.C. § 3553(a), the court sentenced Battle to life imprisonment on count one and 120 months' imprisonment on count nine to run consecutively. See Sentencing Tr. at 43-56.

         Battle appealed. On May 29, 2015, the United States Court of Appeals for the Fourth Circuit affirmed Battle's conviction, enforced the appellate waiver in Battle's plea agreement, dismissed Battle's appeal concerning his sentence, and held that Battle had to raise an ineffective-assistance-of-counsel claim under 28 U.S.C. §2255. See United States v. Battle. 611 F.App'x 780 (4th Cir. 2015) (per curiam) (unpublished).

         On June 30, 2016, Battle filed his section 2255 motion [D.E. 418]. On August 29, 2016, Battle filed an amended section 2255 motion [D.E. 421 ]. In his motion and amended motion, Battle makes three claims: (1) that Battle is no longer a career offender under U.S.S.G. § 4B1.2 because of Johnson v. United States. 135 S.Ct. 2551 (2015); (2) ineffective assistance of counsel during pretrial proceedings and the plea process because counsel failed to investigate the case properly and pressured Battle into pleading guilty thereby rendering Battle's guilty plea involuntary; and (3) that the court erroneously sentenced Battle as a career offender under U.S.S.G. § § 4B 1.1 and 4.B 1.2 even though Battle's common-law robbery conviction is not categorically a crime of violence under the force clause in section 4B1.2(a)(1) and the then-existing residual clause in section 4B1.2(a)(2) is unconstitutionally vague under Johnson. See [D.E. 418] 2-4; [D.E. 421] 4-12; [D.E. 421-1] 4-15.

         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 a claim's legal and factual sufficiency. See Ashcroft v.Iqbal. 556 U.S. 662, 677-78 (2009); Bell AH. 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); Giarratann v. Tnhnsnn. 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. 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.3 d at 3 02 (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'I 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).

         As for Battle's claims that U.S.S.G. § 4B1.2 is unconstitutionally vague under Johnson v. United States. 135 S.Ct. 2551 (2015), and that this court erroneously sentenced Battle as a career offender, Battle's plea agreement contains an appellate waiver. See[D.E. 158]¶2(c). Inthewaiver Battle agreed

To waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea. The foregoing appeal waiver does not constitute or trigger a waiver by the United States of any of its rights to appeal provided by law.
Id. In light of Battle's Rule 11 proceeding, the appellate waiver is enforceable. See Battle. 61 F.App'x at 782; see also United States v. Copeland. 707 F.3d 522, 528-30 (4th Cir. 2013); United States v.Davis. 689 F.3d 349, 354-55 (4th Cir. 2012) (per curiam); United States v. Blick. 408 F.3d 162, 168 (4th Cir. 2005). Battle's claims concerning being a career offender, Johnson, and the court's calculation of his advisory guideline range fall within the appellate waiver. Thus, the waiver bars the claims.

         Alternatively, Battle failed to raise these claims on direct appeal. Thus, the general rule of procedural default bars Battle from presenting these 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. Fueit. 703 F.3d 248, 253 (4th Cir. 2012); United States v. Sanders. 247 F.3d 139, 144 (4th Cir. 2001). Furthermore, Battle has not plausibly alleged "actual innocence" or "cause and prejudice" resulting from the alleged errors about which he now complains. See Bouslev. 523 U.S. at 622-24; Coleman v. Thompson. 501 U.S. 722, 753 (1991); United States v. Fradv. 456 U.S. 152, 170 (1982); United States v. Pettiford. 612 F.3d 270, 280-85 (4th Cir. 2010); United States v. Mikalajunas. 186 F.3d 490, 492-95 (4th Cir. 1999). Accordingly, the claims fail.

         Alternatively, Battle 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. Present 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); Mikalaiunas. 186 F.3d at 495-96. Thus, the claims fail.

         Alternatively, Battle's vagueness challenge to section 4B1.2 fails. See Beckles v. United States. 137 S.Ct. 886, 892-97 (2017). Moreover, this court's alternative variant sentence defeats Battle's argument concerning calculation of his advisory guidelines range, including the court's determination that Battle was a career offender. See Sentencing Tr. at 55 (citing United States v. Gomez-Jimenez. 750 F.3d 370, 382-86 (4th Cir. 2014); United States v. Hargrove. 701 F.3d 156, 160-65 (4th Cir. 2012)).

         As for Battle'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. 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 ...


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