United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge.
4, 2016, Andrew Jackson Walters ("Walters") moved
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his 84-month sentence [D.E. 71]. On July 13, 2016,
the government moved to dismiss Walters's section 2255
motion [D.E. 75] and filed a memorandum in support [D.E. 76].
On August 10, 2016, Walters responded in opposition [D.E.
78]. On March 24, 2017, Walters submitted a conditional claim
for unreasonable delay, which the clerk docketed as a motion
to expedite [D.E. 79]. As explained below, the court grants
the government's motion to dismiss, dismisses
Walters's section 2255 motion, and dismisses the motion
to expedite as moot.
2, 2014, pursuant to a plea agreement, Walters pleaded guilty
to conspiracy to distribute and possess with intent to
distribute 5 kilograms or more of cocaine in violation of 21
U.S.C. § 846. See [D.E. 24; 26], OnDecember21, 2015, at
Walters's sentencing hearing, the court calculated
Walters's total offense level to be 33, his criminal
history category to be IV, and his advisory guideline range
to be 188 to 235 months' imprisonment. See [D.E. 69] 1.
After granting the government's motion under U.S.S.G.
§ 5K1.1 and thoroughly considering all relevant factors
under 18 U.S.C. § 3553(a), the court sentenced Walters
to 84 months' imprisonment. See [D.E. 68] 2. Walters did
4, 2016, Walters filed his section 2255 motion [D.E. 71]. In
his motion, Walters claims ineffective assistance of counsel
for failing to object at sentencing to a two-level
enhancement under U.S.S.G. § 2D 1.1 (b)(1) for
possession of a firearm. Id. at 4. Walters asks the
court to strike the two-level increase under section
2D1.1(b)(1), correct his offense level, and resentence him.
See id at 9.
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 Atl. 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); Giarratano v. Johnson. 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.3dat302 (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'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).
Walters's ineffective-assistance claim, "[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 assistance of counsel in violation of
the Sixth Amendment, Walters must show that bis
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." Id. 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." Ii
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 based on its own familiarity with the case.
See Blackledge v. Allison. 431 U.S. 63, 74 n.4
(1977); United States v. Dyess. 730 F.3d 354, 359-60
(4th Cir. 2013).
Walters's ineffective-assistance claim concerning section
2D 1.1 (b)(1), Walters 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. Pregent. 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);
United States v. Mikalajunas. 186 F.3d 490, 495-96
(4th Cir. 1999). Thus, the claim fails. Alternatively, the
claim fails because the court properly applied the
enhancement under section 2D1.1(b)(1) and properly calculated
the advisory guideline range. See PSR [D.E. 61] ¶¶
4-9, 22, 50, 58, 60; United States v. Manigan. 592
F.3d 621, 628-32 (4th Cir. 2016); United States v.
McAllister. 272 F.3d 228, 233-34 (4th Cir. 2001);
United States v. Harris. 128 F.3d 850, 852-53 (4th
Cir. 1997); U.S.S.G. § 2D1.1 cmt. n.l 1(A). Accordingly,
there was no deficient performance or prejudice. See, e.g.,
Bobby. 558 U.S. at 11-12; Strickland. 466
U.S. at 689-700.
reviewing the claim presented in Walters's motion, the
court finds that reasonable jurists would not find the
court's treatment of Walters's claim debatable or
wrong and that the claim deserves no encouragement to proceed
any further. Accordingly, the court denies a certificate of
appeal ability. See 28 U.S.C. § 2253(c); Miller-El
v. Cockrell. 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel. 529 U.S. 473, 484 (2000).
the court GRANTS the government's motion to dismiss [D.E.
75], DISMISSES Walters's section 2255 motion [D.E. 71],
and DENIES a certificate of appeal ability. The court