United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
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. For the reasons that follow, the
court denies petitioner's motion to vacate and grants the
government's motion to dismiss.
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).
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.
Standard of Review
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).
Petitioner fails to state a claim of ineffective assistance
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
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.
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 ...