United States District Court, E.D. North Carolina, Southern Division
C. DEVER III Chief United States District Judge.
March 30, and May 15, 2015, David Tyrone Murrell
("Murrell") moved for an order directing counsel to
surrender papers relating to his case. See [D.E. 105, 106].
On November 3, 2015, Murrell moved pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct his 210-month
sentence [D.E. 110] and moved for a hearing [D.E. 111]. On
July 18, 2016, the government moved to dismiss Murrell's
section 2255 motion [D.E. 119] and filed a memorandum in
support [D.E. 120]. On August 22, 2016, Murrell responded in
opposition [D.E. 122]. As explained below, the court denies
Murrell's motion for an order directing counsel to
surrender papers relating to his case and motion for a
hearing, grants the government's motion to dismiss, and
dismisses Murrell's section 2255 motion.
April 12, 2013, pursuant to a plea agreement, Murrell pleaded
guilty to possession with intent to distribute 28 grams or
more of cocaine base (crack). See [D.E. 39, 40, 59]. On May
22, 2014, me court held Murrell's sentencing hearing. See
Sentencing Tr. [D.E. 101]. At the hearing, the court adopted
the facts set forth in the Second Revised Presentence
Investigation Report ("PSR") [D.E. 74] and ruled on
Murrell's objections. See Sentencing Tr. at 6, 51-56;
Fed. R. Crim. P. 32(i)(3)(A)-(B). The court calculated
Murrell's total offense level to be 36, his criminal
history category to be IV, and his advisory guideline range
to be 262 to 327 months' imprisonment. See
Sentencing Tr. at 56. After thoroughly considering all
relevant factors under 18 U.S.C. § 3553(a), the court
varied down, sentenced Murrell to 210 months'
imprisonment, and dismissed the remaining two counts pursuant
to the plea agreement. See Id. at 62-68.
appealed. On January 5, 2015, the United States Court of
Appeals for the Fourth Circuit enforced the appellate waiver
in Murrell's plea agreement and dismissed the appeal of
his downward variant sentence. See[D.E. 102].
November 3, 2015, Murrell filed bis section 2255 motion. See
[D.E. 110]. Murrell claims that his first two appointed
attorneys were ineffective during his first three sentencing
hearings. See Id. at 4; [D.E. 110-1] 8-16. According
to Murrell, but for the ineffective assistance of counsel at
his first three sentencing hearings, he would have received a
sentence of between 100 to 125 months or a sentence of 151
months. See [D.E. 110-1] 17-19. Thus, Murrell asks the court
to vacate his sentence and resentence him. See id.
at 20. On July 18, 2016, the government moved to dismiss
Murrell's motion for failure to state a claim upon which
relief can be granted. See [D.E. 119, 120].
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 complaint'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. 30 (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). 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 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). Likewise, a court may rely on its own familiarity with
the case. See. e.g., Blackledge v. Allison, 431 U.S.
63, 74 n.4 (1977); United States v. Dyess, 730 F.3d
354, 359-60 (4th Cir. 2013).
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. See,
e.g., Missouri v. Frye, 566 U.S. 134, 141
(2012); Lafler v. Cooper, 566 U.S. 156, 165 (2012).
"[S]entencing 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 v. United States. 531
U.S. 198, 203-04 (2001). To state a claim of ineffective
assistance of counsel in violation of the Sixth Amendment,
Murrell 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).
"performance inquiry" focuses on "whether
counsel's assistance was reasonable considering all the
circumstances." Id. at 688. 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."
Id. at 689. "It is all too tempting for a
defendant to second-guess counsel's assistance after
conviction or adverse sentence, and it is all too easy for a
court, examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable." Id. Therefore,
the "court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance." Id. The
defendant must overcome the presumption that, under all the
circumstances, the challenged actions "might be
considered sound trial strategy." Id.
(quotations omitted). A defendant making a claim of
ineffective assistance "must identify the acts or
omissions of counsel that are alleged not to be the result of
reasonable professional judgment." Id. at 690.
"The court must then determine whether, in light of all
the circumstances, the identified acts or admissions were
outside the wide range of professionally competent
prejudice component requires the defendant to show that
counsel's deficient performance prejudiced the defendant.
See Id.. at 691-96. The defendant does so by showing
that there is a "reasonable probability" that, but
for the deficient performance, "the result of the
proceeding would have been different." Id. at
694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Id. In analyzing prejudice, "a court should
presume, absent grounds of evidentiary insufficiency, that
the judge or jury acted according to law." Id.
"An assessment of the likelihood of a result more
favorable to the defendant must exclude the possibility of
arbitrariness, whimsy, caprice, nullification, and the
like." Id. at 695 (quotation omitted). A
defendant has "no entitlement to the luck of a lawless
decisionmaker, even if a lawless decision cannot be
reviewed." Id. In analyzing prejudice, the
court must proceed on the assumption that "the
decisionmaker is reasonably, conscientiously, and impartially
applying the standards that govern the decision."
Id. "It should not depend on the idiosyncracies
of the particular decisionmaker, such as unusual propensities
towards harshness or leniency." Id. Thus,
"evidence about the actual process of decision, if not
part of the report of the proceeding under review, and
evidence about, for example, a particular judge's
sentencing practices, should not be considered in the
prejudice determination." Id.
ineffective-assistance claims concern the conduct of his
first two appointed counsel (Sonya Allen and James B. Craven
HI) at his first three sentencing hearings. On April 12,
2013, pursuant to a plea agreement, Murrell pleaded guilty to
possession with intent to distribute 28 grams or more of
cocaine base (crack) (count one). See [D.E. 39, 40, 59]. The
offense conduct in count one took place on March 9, 2011. See
[D.E. 1] 1; [D.E. 40] 3. As part of the plea agreement, the
government agreed to dismiss counts two and three at
sentencing. See [D.E. 40] ¶ 4(a). Count two charged
Murrell with possession of a firearm in furtherance of a
drug-trafficking offense on March 9, 2011. See [D.E. 1] 1.
Count three charged Murrell with possession of a firearm and
ammunition by a convicted felon on March 9, 2011. See
Id. at 2.
the sentencing hearing, the United States Probation Office
prepared a Presentence Investigation Report
("PSR"). See [D.E. 42]. The PSR included a base
offense level of 32 based on 418 grams of cocaine base
(crack), a two-level firearm enhancement under U.S.S.G.
§ 2D1.1(b)(1), and a three-level reduction for
acceptance of responsibility. See Id. ¶¶
43-52. Thus, the total offense level in the PSR was 31. See
id. ¶ 52. When the total offense level of 31
was coupled with Murrell's criminal history category IV,
the PSR identified Murrell's advisory guideline range as
151 to 181 months. See Id. ¶ 54. The PSR
addendum included Murrell's objections. Murrell objected
to 250 grams of cocaine base (crack) attributed to Murrell
from a confidential informant, to the firearm enhancement
under U.S.S.G. § 2D1.1(b)(1), and to the failure to use
a 1:1 ratio for cocaine base (crack). See Id. at
22, 2013, the Honorable Terrence W. Boyle held the first
sentencing hearing. See [D.E. 47] 3. Attorney Sonya Allen
represented Murrell at the hearing. Id. At the
hearing, the court received evidence concerning Murrell's
objections to the PSR. See Id. at 6-10. The court
also heard argument about the advisory guideline range,
including the drug weight and the firearm enhancement.
Id. The court declined to count the 250 grams of
cocaine base (crack) attributed to Murrell from a
confidential informant and sustained the objection to that
250 grams of cocaine base (crack). See Id. at 10.
The court, however, overruled Murrell's objection to the
firearm enhancement. See id Allen then asked to be heard
further about the firearm enhancement and asked the court to
sustain the objection to the firearm enhancement.
Id. at 10-12. Allen told the court that if the court
sustained the firearm objection, Murrell's advisory
guideline range would be 84 to 105 months' imprisonment
based on a total offense level 25 and criminal history
category IV. See Id. at 12. Allen also told the
court that the advisory guideline range would be 100 to 125
months' imprisonment if the court overruled the firearm
enhancement. See Id. The court asked Allen what she
wanted to say about the sentence. Id. Allen
discussed the section 3553(a) factors and requested a
60-month sentence. Id. at 12-16.
Murrell allocuted, the court discussed Murrell's serious
and violent criminal history and told Murrell that "your
sentence is up in the air right now, and we'll see what
it's going to be." M. at 17. Murrell's criminal
history includes convictions for simple assault (twice),
simple affray (twice), possession of drug paraphernalia,
assault with a deadly weapon, discharging a firearm in the
city, assault with a deadly weapon inflicting serious injury,
fleeing to elude arrest with a motor vehicle, and resisting a
public officer. See [D.E. 74] ¶¶ 14-22. Murrell
then allocuted. See Sentencing Tr. at 17-19. Murrell
told the court that he did not possess a firearm in
connection with count one on March 9, 2011, and minimized his