United States District Court, E.D. North Carolina, Eastern Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
matter is before the Court on petitioner's motion to
appoint counsel [DE 42] and motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. [DE 43,
46]. The government filed a motion to dismiss [DE 52], and
petitioner responded and filed a counter-motion to dismiss
[DE 55]. The matters are fully briefed and ripe for
adjudication. For the following reasons, the government's
motion to dismiss is granted and petitioner's motion to
appoint counsel and § 2255 petition are denied.
November 5, 2015, petitioner pleaded guilty, pursuant to a
written plea agreement, to possession with intent to
distribute a quantity of heroin, in violation of 21 U.S.C.
§ 841(a)(1) (Count Two) and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (Count Three). [DE 25, 26]. On March 7,
2016, the Court sentenced petitioner to 36 months'
imprisonment and 10 years' supervised release on Count
Two and 60 months' imprisonment and 5 years'
supervised release on Count Three. [DE 30, 31]. The terms of
imprisonment were ordered to run consecutively to each other,
while the terms of supervised release were ordered to run
concurrently with each other. [DE 31]. Petitioner appealed
his judgment. [DE 33]. On December 2, 2016, the United States
Court of Appeals for the Fourth Circuit affirmed the
conviction in an unpublished per curiam opinion. [DE
December 27, 2016, petitioner filed the instant motion under
28 U.S.C. § 2255. [DE 46]. In his motion, petitioner
raises the following claims: (1) that the Court failed to
inform petitioner of the essential elements of the offenses
to which he pleaded guilty [DE 46 at 4]; (2) that counsel was
ineffective for failing to investigate petitioner's case
and raise "any defenses [on] behalf of petitioner [DE 46
at 5]; and (3) that the Court exceeded the statutory maximum
when it sentenced petitioner to 10 years' supervised
release [DE 46 at 6]. Petitioner also filed a motion to
appoint counsel to represent him in this matter. [DE 42]. In
response, the government filed a motion to dismiss for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6). [DE
52]. Petitioner responded in opposition to the motion to
dismiss and filed a counter-motion to dismiss the
government's motion. [DE 55].
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. Twombfy, 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 t 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 argues that his plea bargain was not voluntary or
knowing because the Court failed to inform petitioner of the
essential elements of the offenses to which he pleaded
guilty. However, this claim is belied by petitioner's own
statements made before the undersigned in court. At the
outset of petitioner's Rule 11 hearing, the Court placed
petitioner under oath. [DE 38 at 2]. The Court then discussed
petitioner's written plea agreement with petitioner. The
Court confirmed that petitioner had read the plea agreement;
that petitioner understood the plea agreement; that
petitioner went over the plea agreement with counsel; and
that petitioner did not have any questions for the Court
regarding the plea agreement. [DE 38 at 5-6]. The Court also
informed petitioner that the "elements of Count Two and
Three are set out in Paragraph Three specifically." [DE
38 at 6; see also DE 26 at 2-A]. After
describing other aspects of the plea agreement, the Court
asked petitioner if "that [was] what [he] agreed to,
" and petitioner answered in the affirmative. [DE 38 at
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) (internal
quotation marks omitted). Because petitioner confirmed, under
oath, that he understood the charges against him and had read
and understood the plea agreement, petitioner's first
claim must fail.
next raises a claim of ineffective assistance of counsel in
support of his motion to vacate his sentence. 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.
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, 59 (1985). A petitioner must
further convince the court that going to trial "would
have been rational under the circumstances." Padilla
v. Kentucky, 559 U.S. 356, 372 (2010). "The
challenger's subjective preferences, therefore, are not
dispositive; what matters is whether proceeding to trial
would have been objectively reasonable in light of all of the
facts." United States v. Fugit, 703 F.3d 248,
260 (4th Cir. 2012).
alleges that counsel was ineffective for failing to
investigate his case and raise defenses on his behalf. The
claim fails to establish prejudice under Strickland.
Based on the factual basis recited by the government at
petitioner's Rule 11 hearing, petitioner cannot establish
that it would have been objectively reasonable to proceed to
trial. Law enforcement located heroin, packaging materials, a
digital scale, and a firearm in a hotel room occupied by
petitioner and a female who was the subject of a missing
person report. [DE 38 at 7]. The female stated that
petitioner brought the firearm into the room and that another
male brought the heroin "for [petitioner] to
package." [DE 38 at 7]. This information was consistent
with the information described in the presentence
investigation report, to which petitioner did not object. [DE
27]. Given this evidence, it would have been objectively
unreasonable to proceed to trial and challenge to two charges
to which he pled guilty, and petitioner therefore cannot show
that counsel was ineffective.
third claim fails because a sentence of 10 years'
supervised release was authorized under 21 U.S.C. §
841(b)(1)(C). Specifically, that subsection states:
"Notwithstanding section 3583 of Title 18, any sentence
imposing a term of imprisonment under this paragraph shall. .
. impose a term of supervised release of at least 3 years . .
.." 21 U.S.C. § 841(b)(1)(C).
these reasons, petitioner cannot state a claim upon which
relief may be granted and his § ...