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Hunter v. United States

United States District Court, W.D. North Carolina, Charlotte Division

May 18, 2017



          Robert J. Conrad, Jr. United States District Judge.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and on the Government's Motion to Dismiss, (Doc. No. 5).

         I. BACKGROUND

         From 2008 to September 2013, pro se Petitioner Rashon Donte Hunter was involved in a large-scale, drug-trafficking conspiracy in Gaston County, North Carolina. (Crim. Case No. 5:15-cr-41-RLV-DCK-1, Doc. No. 255 at ¶ 7: PSR). During the course of the conspiracy, members distributed at least five kilograms of powder cocaine and at least 280 grams of crack cocaine. (Id. at ¶¶ 7-9). Undercover law enforcement officers and confidential informants conducted over 50 controlled buys of drugs and firearms from members of the conspiracy. (Id. at ¶ 5). In one buy, Petitioner sold a confidential informant 55 grams of cocaine. (Id. at ¶ 59).

         A grand jury indicted Petitioner, charging him with conspiracy to possess with intent to distribute at least five kilograms of a mixture and substance containing cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (Count One); conspiracy to distribute and to possess with intent to distribute at least 280 grams of a mixture and substance containing cocaine base, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (Count Two); and possession with intent to distribute and distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 53). (Id., Doc. No. 19: Indictment).

         Petitioner pled guilty to all three charges pursuant to a written plea agreement. (Id., Doc. No. 85 at ¶ 1: Plea Agrmt.). As part of his plea agreement, Petitioner agreed that he understood that “any estimate of the likely sentence is a prediction rather than a promise, ” that the Court could impose any sentence up to the statutory maximum, and that he could “not withdraw the plea as a result of the sentence imposed.” (Id. at ¶ 5). The parties agreed that Petitioner's plea was timely for purposes of acceptance of responsibility and that the amount of cocaine reasonably foreseeable to Petitioner was more than 5, but less than 15, kilograms of powder cocaine, and more than 280 grams, but less than 2.8 kilograms, of crack cocaine. (Id. at ¶ 6).

         Petitioner also stipulated that there was a factual basis for his plea and that he had read and understood the factual basis and that it could be used to determine the applicable sentence. (Id. at ¶ 13). Petitioner agreed to waive his right to challenge his conviction and sentence on appeal or in any post-conviction proceeding, except as to claims of ineffective assistance of counsel or prosecutorial misconduct. (Id. at ¶¶ 18-19).

         At the plea hearing, Petitioner testified that he understood the nature of the charges and the potential penalties, as well as the fact that the Court could not yet determine his sentence and that he would still be bound by his plea even if he received a higher sentence than he expected. (Id., Doc. No. 398 at 4-9: Plea Tr.)). Petitioner testified that he was guilty of the charges. (Id. at 11). The Government summarized the plea agreement, including the provision that there were no other agreements, representations, or understandings between the parties. (Id. at 11-13). Petitioner agreed that he had reviewed the plea agreement with his attorney and that he understood and agreed to its terms, including the fact that he had waived the right to challenge his conviction and sentence in a post-conviction proceeding. (Id. at 14-15). Petitioner testified that he had not been threatened to plead guilty, that no outside promises of a light sentence been made to him, and that he was satisfied with his attorney. (Id. at 15-16). Based on these representations, the magistrate judge accepted Petitioner's plea, finding that it was knowingly and voluntarily made. (Id. at 18).

         A probation officer prepared a presentence report, recommending that Petitioner's base offense level was 30, based on the quantity of drugs involved in the offense, and that he receive a three-level adjustment for acceptance of responsibility, for a total offense level of 27. (Id., Doc. No. 255 at ¶¶ 72, 79-81). The probation officer found that Petitioner had two criminal history points for prior offenses, plus an additional two points pursuant to U.S.S.G. § 4A1.1(d) for committing the instant offense while serving another sentence. (Id. at ¶¶ 87-88). Petitioner also had pending charges in Gaston County, North Carolina, for attempted first-degree murder, discharge of a weapon into a dwelling and moving vehicle, and going armed to the terror of the people. (Id. at ¶ 91). He did not, however, receive any criminal history points for these pending charges. Petitioner's four criminal history points placed him in criminal history category III. (Id. at ¶ 89). Based on Petitioner's offense level and criminal history score, the advisory guidelines range was 87 to 108 months of imprisonment. (Id. at ¶ 111). Due to the statutory mandatory minimum sentence under § 841(b)(1)(A), however, Petitioner's guidelines range became 120 months of imprisonment. (Id. at ¶¶ 110-11).

         At sentencing, Petitioner testified that he had read the PSR and reviewed it with his attorney. (Id., Doc. No. 399 at 3: Sent. Tr.). The parties stipulated that there was a factual basis for the plea and that the Court could rely on the PSR to establish the factual basis. (Id. at 2). This Court imposed a sentence of 78 months of imprisonment. (Id. at 11). The Court informed Petitioner of his right to appeal within 14 days, and Petitioner stated that he understood his rights. (Id. at 13). This Court entered judgment on April 20, 2015. (Id., Doc. No. 323: Judgment).

         Petitioner filed a pro se notice of appeal on December 8, 2015, and counsel was appointed to represent him. (Id., Doc. Nos. 391, 394). On March 14, 2016, Petitioner's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there were no nonfrivolous issues for appeal, but raising the issue of whether counsel provided ineffective assistance at sentencing by not requesting that Petitioner's federal sentence run concurrently with any future sentence that he received for the unrelated pending state charges. See United States v. Hunter, No. 15-4768, ___F. App'x ___, 2017 WL 444689, at *1 (4th Cir. 2017). The Fourth Circuit found that there were no meritorious issues for appeal and that Petitioner's claim of ineffective assistance of counsel should be raised, if at all, under § 2255. Id.

         While Petitioner's appeal was pending, he filed the present motion to vacate on March 3, 2016, raising the following four claims: (1) his guilty plea was involuntary because he understood that his federal sentence and his potential future state sentence were to run concurrently; (2) this Court erred in calculating his criminal history score; (3) his due process rights were violated when this Court did not order his federal sentence to run concurrently with any future state sentence on his unrelated pending state charges; and (4) he received ineffective assistance of counsel because his attorney misadvised him regarding whether his sentences would be concurrent, failed to inform him of his right to appeal, and failed to file an appeal on his behalf. (Civ. Doc. No. 1 at 4-8). In light of the pending appeal, this Court granted the Government's motion to stay the proceedings until his appeal was decided and gave the Government until 45 days after the Fourth Circuit's decision to file a response. (Civ. Doc. Nos. 3-4).

         The Fourth Circuit issued its decision on February 2, 2017, finding no meritorious issues for appeal. Hunter, 2017 WL 444689, at *1. The Government filed its response and motion to dismiss on March 17, 2017, arguing that the motion to vacate should be dismissed because Petitioner waived and procedurally defaulted all of his claims except for his ineffective assistance of counsel claim, and that all of his claims, including his ineffective assistance claim, are without merit. (Doc. No. 5). On April 11, 2017, this Court issued an order giving Petitioner notice of his right to respond to the Government's motion to dismiss. (Doc. No. 6). Petitioner has not filed a response, and the time to do so has passed. Therefore, this matter is ripe for disposition.

         II. ...

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