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Murrell v. United States

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

May 12, 2017

DAVID TYRONE MURRELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JAMES C. DEVER III Chief United States District Judge.

         On 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.

         I.

         A.

         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). 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.

         Murrell 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].

         On 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].

         B.

         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 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).

         "The 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).

         The "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 assistance." Id.

         The 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.

         II.

         Murrell's 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.

         Before 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 12-13.

         On July 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.

         Before 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 criminal ...


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