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Edmondson v. United States

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

May 17, 2017

JEFFERY B. EDMONDSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [DE 33] and the government's motion to dismiss [DE 37]. The matters are fully briefed and ripe for adjudication. For the following reasons, the government's motion to dismiss is granted and petitioner's § 2255 petition is denied.

         BACKGROUND

         On June 25, 2015, petitioner pleaded guilty, pursuant to a written plea agreement, to conspiracy to commit offenses against the United States, in violation of 18 U.S.C. § 371 (Count One), and bribery, in violation of 18 U.S.C. § 201(b)(2) (Count Two). [DE 11, 13]. On September 29, 2015, petitioner was sentenced to a total of 60 months' imprisonment on Count One, and 96 months' imprisonment on Count Two, for a total of 96 months' imprisonment. [DE. 25, 27]. Petitioner did not appeal his judgment.

         On September 12, 2016, petitioner filed a motion to vacate his sentence under 28 U.S.C. § 2255. [DE 33, 33-1]. Petitioner first claims that he is actually innocent of Count One, because the offense involved stealing property that did not belong to the United States, but was instead property of NATO. [DE 33-1 at 3, 4]. Second, petitioner claims, assuming he is actually innocent of Count One, that he could not be guilty of Count Two because his fraud was not against the United States. [DE 33-1 at 5], Third, petitioner claims that his counsel was ineffective for failing to discuss these particular defenses with petitioner prior to his guilty plea. [DE 33-1 at 7]. In response, the government filed a motion to dismiss the motion for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). [DE 37].

         DISCUSSION

         "To 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 Bell Atl. 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)).

         Petitioner's first claim argues that he is actually innocent of Count One, conspiracy to commit offenses against the United States, because the offense involved stealing property that belonged to NATO and not the United States. Because it was not advanced on direct appeal, this claim is procedurally defaulted unless petitioner can show cause and prejudice or actual innocence. Dretke v. Haley, 541 U.S. 386, 393 (2004); United States v. Carter et al., 581 F.App'x 206 (4th Cir. 2014) (unpublished). To establish actual innocence, petitioner must be able to show that-in light of all the evidence-it is more likely than not that no reasonable juror would have convicted him. See Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-328 (1995)).

         Petitioner cannot show that he is actually innocent of Count One which charged petitioner with conspiracy to violate an offense against the United States, in this case 18 U.S.C. §§ 641 and 201(b)(2). Specifically, the criminal information alleged that petitioner, along with co-conspirators, conspired to- commit the following:

[T]o knowingly and unlawfully embezzle, steal, purloin, and convert to his use, and the use of another, things of value of the United States and a department and an agency thereof. . .
[T]o directly and indirectly, corruptly demand, seek, receive, accept, and agree to receive and accept something of value personally, in return for being influenced in the performance of an official act, and to defraud the United States ...

[DE 1 at 4]. The criminal information detailed the factual basis for this charge, stating that petitioner committed this offense as a unit chief in the United States Special Forces serving with the United States Army in Afghanistan. In this position, petitioner had a responsibility to manage Transportation Movement Requests ("TMRs"). [DE 1 at 4]. TMRs were used by the military units to request transportation support for the movement of various items, including fuel. "Company A" served as the prime contractor for these TMR contracts and packaged and invoiced the costs of TMRs to the NATO support Agency, or "NSPA". [DE 1 at 5, 6]. The United States government provided advance funding to NSPA in order to cover the cost of TMRs that were executed in support of military units. NSPA drew from United States-provided funds in order to pay Company A for the cost of TMRs completed in support of petitioner's unit. [DEI at 2].

         The criminal information alleged that petitioner, along with co-conspirators, used his position in the Army to commit an offense against the United States by creating false TMRs and fraudulently certifying that the TMRs had been completed, thereby causing unlawful payments to be made for the TMRs. It also alleged that petitioner and co-conspirators facilitated the unlawful theft of U.S. fuel designated for wartime operations all in return for money, and sent these proceeds to the United States through various means designed to avoid detection. [DE 1 at 4, 5]. Petitioner pleaded guilty to this charge and admitted the factual basis for the charge outlined in the criminal information. [DE 5].

         Petitioner argues in his § 2255 motion that he is actually innocent of this charge because the funds he conspired to embezzle or steal belonged to NATO, not to the United States. [DE 33-1 at 3]. However, the charge in the criminal information, to which petitioner pleaded guilty and admitted, specifically states that the pilfered funds were drawn from funds provided in advance by the United States and which were earmarked for use by the United States military. [DE 1 at 2]. The criminal information makes it clear that the United States exercised supervision and control over these funds, and that they were United States property. Therefore, when petitioner and co-conspirators caused unlawful payments to be made and facilitated the theft of fuel in return for money, they defrauded the United States. For these ...


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