United States District Court, W.D. North Carolina, Charlotte Division
ANTONIO L. SHINE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Cogburn Jr. Judge.
MATTER is before the Court on Petitioner's Motion to
Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255, (Doc. No. 1), and on the Government's Motion to
Dismiss, (Doc. No. 5).
Antonio Lamont Shine has moved to vacate, correct, or set
aside his sentence pursuant to 28 U.S.C. § 2255, arguing
that his sentence should not have been enhanced under the
Sentencing Guidelines for his prior conviction for common law
robbery. Petitioner was involved in distributing drugs in the
Beatties Ford Road area of Charlotte, North Carolina. (Crim.
Case No. 3:14-cr-182-MOC-DSC, Doc. No. 48 at ¶ 7: PSR).
A confidential informant provided Petitioner's
information and telephone number to a Charlotte-Mecklenburg
police detective. (Id.). On December 12, 2013, the
detective, acting in an undercover capacity, called
Petitioner and arranged to buy heroin. (Id.).
Although Petitioner agreed to the transaction and was seen in
the area of Beatties Ford Road where the sale was to take
place, he did not go through with the deal. (Id.).
Law enforcement officers executed a search warrant at his
residence the next day, finding marijuana, heroin, cocaine,
scales, a loaded .9mm Glock, and assorted ammunition.
(Id. at ¶¶ 9-10). The firearm was found in
a book bag containing marijuana, and it had Petitioner's
DNA on it. (Id. at ¶ 11).
jury charged Petitioner with possession with intent to
distribute heroin, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(C) (Count One); possession with intent to
distribute marijuana, in violation of 21 U.S.C. §
841(a), (b)(1)(D) (Count Two); possession with intent to
distribute cocaine, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(C) (Count Three); possession of a firearm
in furtherance of a drug-trafficking crime, in violation of
18 U.S.C. § 924(c) (Count Four); and possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g) (Count Five). (Id., Doc. No. 1:
Indictment). The Government filed a notice pursuant to 21
U.S.C. § 851, indicating its intent to rely on
Petitioner's prior North Carolina felony conviction for
trafficking in cocaine to enhance the penalties under §
841. (Id., Doc. No. 4: § 851 Notice).
agreed to plead guilty to Counts One, Two, Three, and Five,
in exchange for the dismissal of Count Four and the §
851 enhancement. (Id., Doc. No. 32 at ¶¶
1-2: Plea Agrmt.). The parties agreed that the four-level
enhancement in U.S.S.G. § 2K2.1(b)(6)(B), for possessing
or using a firearm during another felony offense, applied and
that neither party would seek a departure or variance from
the applicable guidelines range. (Id. at ¶ 7).
Petitioner also agreed to waive the right to contest his
conviction or sentence on appeal or in any post-conviction
proceeding, except as to claims of ineffective assistance of
counsel or prosecutorial misconduct. (Id. at
¶¶ 18-19). After a plea hearing, the magistrate
judge accepted Petitioner's guilty plea, finding that it
was knowingly and voluntarily made. (Id., Doc. No.
34: Acceptance and Entry of Guilty Plea).
probation officer prepared a presentence report (PSR),
recommending that, pursuant to U.S.S.G. § 2K2.1(a)(3),
Petitioner be sentenced at a base offense level of 22, based
on his possession of a firearm that was a semiautomatic
weapon capable of accepting a large capacity magazine, as
well as his offense occurring subsequent to his having a
felony conviction of either a crime of violence or a
controlled substance offense, citing his prior North Carolina
conviction for common law robbery. (Id., Doc. No. 48
at ¶ 27). The probation officer applied the four-level
upward adjustment under § 2K2.1(b)(6)(B) and a
three-level downward adjustment for acceptance of
responsibility, for a total offense level of 23.
(Id. at ¶¶ 28, 35-37) (because the total
offense level for the drug offenses was lower, the higher
offense level for Count Five was used). The probation officer
determined that Petitioner had a criminal history score of
nine and a criminal history category of IV, based on prior
convictions that included North Carolina convictions for
felony possession of cocaine; common law robbery; and
trafficking in cocaine by possession, possession with intent
to sell and distribute cocaine, possession with intent to
sell and distribute MDA/MDMA, possession of drug
paraphernalia, and resisting a public officer. (Id.
at ¶¶ 41, 45, 47-49). This placed Petitioner's
advisory guidelines range at 70 to 87 months of imprisonment.
(Id. at ¶ 93).
objected to the PSR. (Id. at pp. 22-24). Although
Petitioner successfully challenged the original PSR's
recommendation that he be sentenced as a career offender,
this Court overruled his contention that his common law
robbery conviction was not a crime of violence under §
2K2.1, as well as his argument that this conviction was
almost outside the fifteen-year time frame for consideration
in his criminal history. (Id., Doc. No. 56:
Statement of Reasons). This Court specifically found at
sentencing that, even if the common law robbery conviction
was not used to enhance Petitioner's offense level, the
Court would have imposed an identical sentence. (Id.
at 4). This Court sentenced Petitioner to 70 months of
imprisonment, entering the judgment on December 14, 2015.
(Id., Doc. No. 55: Judgment).
did not appeal. He filed the pending, timely motion to vacate
on December 22, 2016. (Civ. Doc. No. 1 at 1-2). In response
to this Court's order, Petitioner filed an amended motion
to vacate on January 29, 2017. (Civ. Doc. No. 3). Petitioner
argues that his prior North Carolina conviction for common
law robbery should not have been used to enhance his sentence
under U.S.S.G. § 2K2.1, citing United States v.
Gardner, 823 F.3d 793 (4th Cir. 2016). (Id. at
3-6). The Government filed its response and motion to dismiss
on April 11, 2017. (Doc. No. 5). On April 20, 2017, this
Court issued an order giving Petitioner notice of his right
to respond to the Government's motion to dismiss. (Doc.
No. 6). Petitioner filed a response on May 2, 2017. (Doc. No.
7). Therefore, this matter is ripe for disposition.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the arguments presented by Petitioner can be
resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
following reasons, the Court dismisses and denies
Petitioner's motion to vacate. The Court first finds that
Petitioner waived, as part of his plea agreement, the right
to seek post-conviction relief, including relief under §
2255, except for claims of ineffective assistance of counsel
or prosecutorial misconduct. (Crim. Case No.
3:14-cr-182-MOC-DSC, Doc. No. 32 at ¶¶ 18-19).
Petitioner does not specifically allege that he is bringing
either of these two claims here. A knowing and voluntary
waiver of the right to pursue post-conviction relief is
enforceable. See United States v. Lemaster, 403 F.3d
216, 220 (4th Cir. 2005). Here, there is no allegation of
involuntariness, and any such allegation would be frivolous
because it would contradict Petitioner's testimony at the
plea hearing. Furthermore, a waiver in a plea agreement is
enforceable even if there is an intervening change in the
law. See United States v. Copeland, 707 F.3d 522,
529 (4th Cir. 2013). Thus, Petitioner's reliance on
Gardner does not affect the validity of his waiver
of the right to pursue post-conviction relief. Accordingly,
Petitioner's claim is barred by his plea agreement
waiver. See (Id., Doc. No. 32 at
Court further finds that Petitioner's challenge to his
guidelines range is procedurally barred due to his failure to
raise this issue on direct appeal. A § 2255 motion is
not a substitute for a direct appeal. Claims of error that
could have been raised on direct appeal, but were not, are
procedurally barred unless the petitioner shows both cause
for the default and actual prejudice, or demonstrates that he
is actually innocent of the offense. See Bousley v.
United States, 523 U.S. 614, 621-22 (1998); United
States v. Bowman, 267 F. App'x 296, 299 (4th Cir.
2008). “[C]ause for a procedural default must turn on
something external to the defense, such as the novelty of the
claim or a denial of effective assistance of counsel.”
United States v. Mikalajunas, 186 F.3d 490, 493 (4th
Cir. 1999). A subsequent change in the law justifies the
failure to raise an issue only where the state of the law was