United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge
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.
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.
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F.App'x 780 (4th Cir. 2015) (per curiam) (unpublished).
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.
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).
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
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.
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.
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
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 ...