United States District Court, E.D. North Carolina, Western 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 261]. The government filed a motion to
dismiss [DE 265], and petitioner responded [DE 270]. 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.
August 6, 2013, a jury found petitioner guilty of the
following: conspiracy to distribute and possess with the
intent to distribute 280 grams or more of cocaine base
(crack) and five kilograms or more of cocaine, in violation
of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Count One);
two counts of distribution of five grams or more of cocaine
(crack), in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C) (Counts Two and Three); two counts of distribution
of more than five grams of cocaine base and aiding and
abetting, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C) and 18 U.S.C. § 2 (Counts Four and Five);
possession of a firearm by a felon, in violation of 18 U.S.C.
§§ 922(g) and 924 (Count Six); and tampering, in
violation of 18 U.S.C. § 1512(b)(1) (Count Seven). [DE
January 7, 2014, petitioner was sentenced to 400 months'
imprisonment on Count One, concurrent with 120 months'
imprisonment on Count Six, and 240 months' imprisonment
on all remaining counts, for a total of 400 months'
imprisonment. [DE 164]. Petitioner appealed. On September 1,
2015, upon the government's unopposed motion to remand
the case, petitioner's sentence was vacated and the case
was remanded to district court for rearraignment. [DE 226;
see also DE 223, 224].
2, 2016, petitioner pleaded guilty at his rearraignment
hearing, pursuant to a written plea agreement, to conspiracy
to possess with the intent to distribute a quantity of
cocaine base, in violation of 21 U.S.C. §§
841(a)(1) and 846. [DE 250], All original counts (One through
Seven) were dismissed pursuant to petitioner's plea
agreement. [DE 250 at 6]. In addition, the plea agreement
contained stipulations as to the following non-binding
sentencing factors: an upward adjustment of two levels for
possession of a dangerous weapon under USSG §
2D1.1(B)(1), and an upward adjustment of two levels for
witness tampering under USSG § 3C1.1. [DE 250 at 6]. On
June 23, 2016, petitioner was resentenced to a total of 150
months' imprisonment. [DE256].
February 24, 2017, petitioner filed this motion to vacate
under 28 U.S.C. § 2255, alleging that defense counsel
was ineffective for failing to move to suppress evidence
related to petitioner's possession of a firearm. [DE 261,
261-1]. 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
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 Ail. 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)).
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.Sl 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 move to
suppress evidence related to petitioner's possession of a
firearm and asks the Court to vacate his conviction under 18
U.S.C. § 922(g). However, petitioner was not convicted
and did not plead guilty to a charge under § 922(g).
Instead, petitioner pled guilty to conspiracy to possess with
the intent to distribute a quantity of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. [DE
petitioner intended to challenge his dangerous weapon
sentence enhancement under the United States Sentencing
Guidelines, the Court cannot find that counsel was
ineffective for failing to challenge this enhancement.
Petitioner's plea agreement specifically stipulated to
USSG § 2D1.1(B)(1), which is a non-binding sentencing
factor and provides for an upward adjustment of two levels
for possession of a dangerous weapon. Because petitioner
specifically agreed to this stipulation, there would have
been no reason for defense counsel to file a motion to
suppress as to evidence that potentially led to that
agreed-upon enhancement. Therefore, petitioner cannot show
that counsel was deficient under Strickland.
these reasons, petitioner cannot state a claim upon which
relief may be granted and his § ...