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Jacobs v. United States

United States District Court, E.D. North Carolina, Western Division

May 22, 2017

KENNETH CHRISTOPHER JACOBS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         This matter is before the court on petitioner's motion to vacate, set aside, or correct sentence, made pursuant to 28 U.S.C. § 2255 (DE 41). Also before the court is the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6) . (D E 4 5) . The issues raised are ripe for ruling.[1] For the reasons that follow, the court denies petitioner's motion to vacate and grants the government's motion to dismiss.

         BACKGROUND

         On March 9, 2015, petitioner pleaded guilty, pursuant to a written plea agreement, to possession with intent to distribute a quantity of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). On June 30, 2015, the court sentenced petitioner to 168 months' imprisonment. Petitioner appealed his judgment, but the Fourth Circuit Court of Appeals affirmed. See United States v. Jacobs, 632 F. App'x 134 (4th Cir. 2016).

         On January 26, 2017, petitioner filed the instant motion to vacate under 28 U.S.C. § 2255, arguing: 1) his attorney provided ineffective assistance of counsel by advising him that he would not receive more than 60 months' imprisonment; 2) his appellate counsel provided ineffective assistance of counsel by failing to raise any significant issues; and 3) the court abused its discretion by sentencing him to a term of imprisonment that was greater than what the government recommended. In its motion to dismiss, filed on March 13, 2017, the government argues that petitioner's § 2255 motion should be dismissed for failure to state a claim upon which relief can be granted.

         COURT'S DISCUSSION

         A. Standard of Review

         A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b).

         B. Analysis

         1. Petitioner fails to state a claim of ineffective assistance of counsel.

         Petitioner has raised two ineffective assistance of counsel clai m s . S e e Mot. Vacate (DE 41); Mot. Vacate Mem. (DE 41-1). In order to establish ineffective assistance of counsel, a petitioner must satisfy a two-pronged test. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first prong, a petitioner must show that the representation “fell below an objective standard of reasonableness.” Id. at 688. The court must be “highly deferential” to counsel's performance and must make every effort to “eliminate the distorting effects of hindsight.” Id. at 689. Therefore, the court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. The second prong requires a petitioner to show that he was prejudiced by the ineffective assistance by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. This court will apply the Strickland standard to each of petitioner's claims.

         a. Improperly advised

         In his first claim, petitioner initially alleges that his attorney provided ineffective assistance by advising him that he would not receive more than 60 months' imprisonment if he pleaded guilty. Mot. Vacate Mem. (DE 41-1) at 1, 5-9. Petitioner argues that he was prejudiced because he received a sentence of 168 months. Id. at 1. Petitioner further argues that if he had gone to trial, his sentence would not have exceeded 168 months and “could have” resulted in an acquittal. Id. Next, petitioner alleges that his appellate counsel provided ineffective assistance by failing to raise this issue on direct appeal. Id. at 11.

         Petitioner's initial argument must fail because it is belied by his statements made during arraignment. At petitioner's arraignment, held on March 9, 2015, he pleaded guilty to Count Four of the ...


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