United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge.
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).
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).
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).
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).
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).
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).
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
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.
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.
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).
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