United States District Court, E.D. North Carolina, Western Division
JEFFERY B. EDMONDSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
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.
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.
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].
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)).
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)).
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
[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].
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].
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 ...