United States District Court, E.D. North Carolina
KATHRYN C. SPERRY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comers before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. [DE 15]. The government has moved to dismiss the
petition, [DE 19], and the matter is ripe for disposition.
For the reasons discussed below, the government's motion
to dismiss is granted and petitioner's motion is
December 5, 2016, petitioner pleaded guilty, without a
written plea agreement, to operating a motor vehicle while
under the influence, in violation of 36 C.F.R. § 4.23(a)
(Count Two); simple assault, in violation of 18 U.S.C. §
113(a)(5) (Count Three); and interfering with and
intimidating a government agent, in violation of 36 C.F.R.
§ 2.32(a)(1) (Count Four). [DE 13]. On the same day, the
Court sentenced petitioner to 6 months' imprisonment on
Count Two, 2 years' supervised probation on Count Three,
and 2 years' supervised probation on Count Four, with the
terms to run concurrently with each other. [DE 13].
Petitioner did not appeal her judgment.
February 13, 2017, petitioner filed the instant motion under
28 U.S.C. § 2255. [DE 15]. Petitioner raises two claims.
First, she alleges that her rights were violated when the
Court sentenced her without a presentence investigation
report ("PSR"). [DE 15 at 3]. Second, she alleges
that the Court "failed to take into account [her]
mitigating factors" that would affect her sentence. [DE
15 at 4]. On March 14, 2017, the government moved to dismiss
the motion under Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failing to state a claim upon which relief can
be granted. [DE 20]. Petitioner filed a response to the
government's motion on April 4, 2017. [DE 24].
survive a motion to dismiss pursuant to Rule 12(b)(6),
[petitioner's] '[f]actual allegations must be enough
to raise a right to relief above the speculative level, '
thereby 'nudg[ing] their claims across the line from
conceivable to plausible.'" Aziz v. Alcolac
Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting
BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
"Under § 2255(b), [u]nless the motion and files and
records of the case conclusively show that the prisoner is
entitled to no relief, the court must grant a prompt hearing
to determine the issues and make findings of fact and
conclusions of law with respect thereto." United
States v. Thomas, 627 F.3d 534, 539 (4th Cir. 2010)
(internal quotation omitted). However, "vague and
conclusory allegations contained in a § 2255 petition
may be disposed of without further investigation by the
District Court." United States v. Dyess, 730
F.3d 354, 359 (4th Cir. 2013) (quoting United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
did not raise either of her claims on appeal. As a result,
they are procedurally defaulted unless petitioner can show
cause and prejudice or actual innocence. United States v.
Frady, 456 U.S. 152, 167-68 (1982); United States v.
Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999). It
appears that petitioner asserts cause and prejudice by
alleging that counsel was ineffective for failing to raise
these issues on appeal. [DE 15 at 3, 4].
order to demonstrate that the assistance of counsel was
ineffective in violation of the Sixth Amendment, a petitioner
must show (1) deficient performance, meaning that
"counsel's representation fell below an objective
standard of reasonableness" and (2) resulting prejudice,
meaning that "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 694 (1984).
In accordance with Strickland, the prejudice prong
is evaluated first if the lack of sufficient prejudice alone
can dispose of the ineffective assistance claim. Id.
at 697. In order to establish Strickland prejudice
in the context of a guilty plea, a petitioner "must show
that there is a reasonable probability that, but for
counsel's errors, [she] would not have pleaded guilty and
would have insisted on going to trial." Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
Court must "judge the reasonableness of counsel's
conduct on the facts of the particular case, viewed as of the
time of counsel's conduct, " and "[j]udicial
scrutiny of counsel's performance must be highly
deferential." Roe v. Flores-Ortega, 528 U.S.
470, 477 (2000) (citing Strickland, 466 U.S. at
689-90)). "Counsel are afforded a strong presumption
that their performance was within the extremely wide range of
professionally competent assistance." Baker v.
Corcoran, 220 F.3d 276, 293 (4th Cir. 2000) (quoting
Strickland, 466 U.S. at 689). In considering whether
counsel's performance was deficient, a court "must
not permit hindsight to distort [its] assessment of
counsel's performance, and [it] must appreciate that
counsel may choose a trial strategy from within a wide range
of acceptable strategies." Clagett v. Angelone,
209 F.3d 370, 380 (4th Cir. 2000).
has not demonstrated deficient performance by counsel in
failing to raise the lack of a PSR at sentencing on direct
review, and nor has she demonstrated a likelihood that her
sentence would have been different had the Court considered a
PSR. Federal Rule of Criminal Procedure 32(c) generally
requires the probation officer to produce a presentence
investigation report unless "the court finds that the
information in the record enables it to meaningfully exercise
its sentencing authority under 18 U.S.C. § 3553, and the
court explains its finding on the record." Fed. R. Crim.
P. 32(c)(1)(A)(ii). The case cited by petitioner,
Molina-Martinez v. United States, 136 S.Ct. 1338
(2016), does not stand for the proposition that a court
cannot sentence a . defendant in the absence of such a
report, and defendant has alleged no facts demonstrating that
the Court did not comply with the requirements of Rule 32(c)
in imposing her sentence. Petitioner has also not alleged any
facts demonstrating that she would have received a different
sentence had counsel raised this issue before the Court or on
petitioner's second claim, petitioner has failed to
demonstrate that counsel was ineffective for not raising this
issue on appeal. Petitioner has not alleged with any
specificity what mitigating factors the Court should have
considered in imposing sentence and how those factors would
have led to a different outcome. Accordingly, petitioner has
not pled factual allegations "enough to raise a right to
relief above the speculative level, " thereby
"nudg[ing] [her] claims across the line from conceivable
to plausible." Twombly, 550 U.S. at 555.
counsel's performance must be viewed under a highly
deferential standard, and petitioner has failed to state a
claim in regard to counsel's performance at sentencing or
on appeal which would suggest that it fell below an objective
standard of reasonableness. Petitioner's claims regarding
her counsel therefore do not reveal any alleged errors which
were "so serious that [counsel] was not functioning as
the 'counsel' guaranteed the defendant by the Sixth
Amendment." United States v. Roane, 378 F.3d
382, 404 (4th Cir. 2004) (internal quotation and citation
omitted). For these reasons, the Court finds that petitioner
has failed to state a claim of ineffective assistance of
counsel sufficient to excuse her failure to raise these
issues on appeal. As a result, petitioner has failed to state
a claim that warrants vacating her judgment in this matter.