United States District Court, E.D. North Carolina, Southern Division
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 248] and the government's motion to
dismiss [DE 253]. The matters are fully briefed and ripe for
adjudication. For the following reasons, the government's
motion to dismiss is granted, petitioner's § 2255
petition is dismissed, and a certificate of appealability is
to a written plea agreement, petitioner pled guilty on June
4, 2013, to four counts: conspiracy to commit wire fraud, in
violation of 18 U.S.C. § 1349 (Count One); access device
fraud and aiding and abetting, in violation of 18 U.S.C.
§§ 2 and 1029(a)(2) (Count Three); access device
fraud and aiding and abetting, in violation of 18 U.S.C.
§§ 2 and 1029(a)(5) (Count Four); and aggravated
identity theft and aiding and abetting, in violation of 18
U.S.C. §§ 2 and 1028A(a)(1) (Count Six). [DE 127].
On October 16, 2013, Riley was sentenced to 132 months'
imprisonment on Counts One and Four, 120 months'
imprisonment on Count Three, with the terms to run
concurrently, and 24 months' imprisonment on Count Six,
with that term to run consecutively with the other counts.
[DE 148]. Petitioner also received a total of five years of
supervised release. Id. Finally, petitioner received
a special assessment of $400.00 and restitution in the amount
of $153, 084.21, joint and several with his co-defendants.
Id. Petitioner and two co-defendants appealed, and
their appeals were consolidated. The Fourth Circuit affirmed
in part and dismissed in part in an unpublished opinion
issued on August 6, 2014. [DE 182].
October 17, 2014, petitioner filed a motion under 28 U.S.C.
§ 2255. [DE 194]. On November 6, 2014, petitioner filed
an amended motion. [DE 199]. After the government moved to
dismiss petitioner's motion [DE 204, 205],
petitioner's counsel moved to withdraw, and petitioner
moved to file an amended § 2255 motion [DE 220, 221]. On
March 26, 2015, the Court granted counsel's motion to
withdraw and petitioner's motion to file an amended
§ 2255 motion. [DE223].
November 9, 2015, petitioner filed the instant amended §
2255 motion. [DE 248]. In it, he alleges several claims of
ineffective assistance of counsel as well as violations of
Rule 11 of the Federal Rules of Criminal Procedure. [DE
248-1]. Petitioner alleges the following claims in support of
his motion to vacate his sentence: (1) that counsel was
ineffective for failing to explain the nature of supervised
release and for failing to "explain the factual basis
for the plea as it related to the Aggravated Identity Theft
and Aiding and Abetting charge" [DE 248-1 at 2-4]; (2)
ineffective assistance of counsel in failing to challenge the
aggravated identity theft charge [DE 248-1 at 4-6]; (3)
ineffective assistance of counsel in failing to effectively
challenge guideline enhancements based on role in the offense
[DE 248-1 at 6-9]; and (4) finally that his plea violated
Rule 11 of the Federal Rules of Criminal Procedure [DE 248-1
at 11-13]. In response, the government filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
responded to the government's motion to dismiss and moved
to amend his § 2255 motion. [DE 261]. In moving to
amend, petitioner sought to allege additional facts to show
(1) that counsel and the Court incorrectly advised petitioner
of the statutory maximum penalty applicable to the wire fraud
conspiracy, and arguing that but for that misinformation
petitioner would not have entered a plea of guilty to that
count [DE 261 at 4], and (2) that the Court improperly
enhanced petitioner's sentence under U.S.S.G. § 281
.1 (b)(l 1) given the conviction for aggravated identity
theft, and arguing that counsel rendered ineffective
assistance when he failed to object to or appeal from the
alleged misapplication of the Guidelines [DE 261 at 5].
August 25, 2016, the Court appointed an attorney to assist
petitioner and further develop petitioner's theory as to
claim 2 of the instant amended § 2255 motion. [DE 266].
Appointed counsel for petitioner thereafter filed a response
on October 16, arguing that petitioner's second claim is
cognizable as one of actual innocence as to Count Six of the
indictment since it posits that the government did not
proffer evidence that it could prove a key element of the
offense. [DE 270]. The government replied to this response
and disputed that petitioner is able to allege a claim of
actual innocence as to Count Six. [DE 271].
12(b)(6) motion to dismiss for failure to state a claim for
which relief can be granted challenges the legal sufficiency
of a plaintiffs complaint. Francis v. Giacomelli,
588 F.3d 186, 192 (4th Cir. 2009). When ruling on the motion,
the court "must accept as true all of the factual
allegations contained in the complaint." Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although
complete and detailed factual allegations are not required,
"a plaintiffs obligation to provide the
'grounds' of his 'entitle[merit] to relief
requires more than labels and conclusions . ..."
Twombly, 550 U.S. at 555 (citations omitted).
"Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555). Similarly,
a court need not accept as true a plaintiffs
"unwarranted inferences, unreasonable conclusions, or
arguments." E. Shore Mkts., Inc. v. J.D. Assocs.
Ltd., 213 F.3d 175, 180 (4th Cir. 2000).
brings several claims alleging that he was denied his Sixth
Amendment right to effective assistance of counsel. In order
to demonstrate that the assistance of counsel fell below the
level of effectiveness guaranteed by the Sixth Amendment,
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).
The 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). In accordance with Strickland, the
prejudice prong is evaluated first if the lack of sufficient
prejudice alone can dispose of the ineffective assistance
claim. Strickland, 466 U.S. at 697. To prevail under
the prejudice prong of Strickland when challenging a
guilty plea, petitioner must show that "there is a
reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on
going to trial." Hill v. Lockhart, 474 U.S. 52,
first claims counsel was ineffective by insufficiently
explaining the nature of supervised release and did not
adequately explain the basis of the aggravated identity theft
charge in Count Six. [DE 248-1 at 2]. Petitioner also appears
to allege that counsel was ineffective for incorrectly
advising petitioner of the statutory maximum penalty
applicable to the wire fraud conspiracy. [DE 261 at 4].
However, petitioner's signature on the memorandum of his
plea agreement, as well as his testimony at arraignment,
belie both of these notions. First, each count listed in the
memorandum of petitioner's plea agreement includes the
elements of the offense and their maximum terms of
imprisonment, as well as the maximum term of supervised
release associated with each count along with the maximum
term of imprisonment upon revocation of supervised release.
[DE 127]. At the end of this document is petitioner's
signature. Id. Moreover, at petitioner's
arraignment the Court again explained the possible terms of
punishment and supervised release associated with each
charge, and petitioner stated that he understood the charges
and punishments he faced, and that he had read over the plea
agreement, discussed it with his lawyer, understood it, and
had no questions about it. [DE 175]. Petitioner stated, under
oath, that he had enough time to meet with counsel and was
satisfied with counsel's performance. [DE 175 at 2-3].
The Court considers these facts in light of Fourth Circuit
precedent stating, "in the absence of extraordinary
circumstances, . . . allegations in a § 2255 motion that
directly contradict the petitioner's sworn statements
made during a properly conducted Rule 11 colloquy are always
palpably incredible and patently frivolous or false."
United States v. Lemaster, 403 F.3d 216, 221 (4th
Cir. 2005). Accordingly, the Court cannot find that
petitioner's counsel was ineffective in explaining the
nature of supervised release, the basis of the aggravated
identity theft charge in Count Six, or the statutory maximum
penalty applicable to the wire fraud conspiracy, as
petitioner demonstrated on multiple occasions that he knew
and understood the possible punishments he faced and the
terms of punishment associated with each charge. As there is
no deficient performance, this claim of ineffective
second claim alleges actual innocence of Count Six of the
indictment and ineffective assistance of counsel for failing
to object to the insufficiency of evidence (or a sufficient
factual basis at the Rule 11 hearing) to support a conviction
for Count Six. This claim concerns an element of the
aggravated identity theft charge under 18 U.S.C. §
1028A(a)(1). The elements of this crime require the
government to show that defendant "(1) knowingly
transferred, possessed, or used, (2) without lawful
authority, (3) a means of identification of another person,
(4) during and in relation to a predicate felony
offense." United States v. Adepoju, 756 F.3d
250, 256 (4th Cir. 2014) (quoting United States v.
Abdelshafi, 592 F.3d 602, 607 (4th Cir. 2010)). In
Flores-Figuerora v. United States, 556 U.S. 646, 657
(2009), a unanimous Supreme Court resolved a circuit split
arising out of aggravated identity theft prosecutions and
held "that § 1028A(a)(1) requires the Government to
show that the defendant knew that the means of identification
belonged to another person." Id.
Petitioner's indictment for Count Six tracks these
elements of the statute, [DE 1 at 13], but petitioner argues
that the counsel was ineffective for failing to object to the
insufficient evidence at arraignment, in the pre-sentence
report ("PSR"), or at sentencing, showing that
petitioner knew that the means of identification of another
underlying the charge actually belonged to a real person.
Petitioner argues that counsel was deficient for failing to
raise this claim and that this failure was prejudicial as the
sentence imposed for Count Six under § 1028A carried a
mandatory two-year consecutive sentence to any sentence for
the underlying offense, in this case access devise fraud
under Count 2.
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 etal,
581 F.App'x 206 (4th Cir. 2014) (unpublished). The Court
will address ...