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Hart v. United States

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

May 23, 2017

MARKEITH HART, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This matter comes before the court on petitioner's motion to vacate, set aside, or correct sentence made pursuant to 28 U.S.C. § 2255, as corrected and amended (DE 59, 63, 67), and his motion for speedy disposition (DE 57). Also before the court is the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 75). The issues raised are ripe for ruling.[1] For the reasons that follow, the court denies petitioner's motion to vacate, grants the government's motion to dismiss, and denies as moot petitioner's motion for speedy disposition.

         BACKGROUND

         On November 3, 2014, pursuant to a written plea agreement, petitioner pleaded guilty to possession of an unregistered National Firearms Act weapon, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. On March 30, 2015, petitioner was sentenced to 87 months' imprisonment. Petitioner appealed his judgment, but the Fourth Circuit Court of Appeals affirmed the court's sentence.

         On April 8, 2016, petitioner filed his motion for speedy disposition. On the same day, petitioner filed the instant motion to vacate under 28 U.S.C. § 2255, arguing that: 1) his attorney provided ineffective assistance of counsel based on a conflict of interest; and 2) following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), his sentence was improperly enhanced. In its motion to dismiss, filed on August 30, 2016, 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 Untied 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 making findings of fact and conclusions of law with respect thereto.” Id. § 2255(b).

         B. Analysis

         1. Motion to Vacate

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

         In his first claim, petitioner alleges that his attorney provided ineffective assistance based on a conflict of interest. Mot. Vacate Mem. (DE 67-1) at 2-6. In particular, petitioner contends that his attorney represented him during the plea process and also represented Kurt Swain, an individual who assisted law enforcement in the investigation and prosecution of petitioner's case. Id. at 2. Petitioner argues that when the court allowed his attorney to withdraw from representation, it was because the court found there was an actual conflict of interest. Id. at 6.

         When an ineffective assistance of counsel claim is premised on the existence of a conflict of interest, the appropriate legal standard is set forth in Cuyler v. Sullivan, 446 U.S. 335 (1980). United States v. Nicholson, 475 F.3d 241, 249 (4th Cir. 2007). Under Cuyler, a petitioner must show: 1) his attorney operated under “an actual conflict of interest”; and 2) this conflict “adversely impacted his lawyer's performance.” Cuyler, 446 U.S. at 348; Nicholson, 475 F.3d at 249. If a petitioner makes this showing, prejudice is presumed and nothing more is required for relief. Cuyler 446 U.S. at 349-50; Nicholson, 475 F.3d at 249.

         At the outset, the court notes that petitioner has misstated the relevant facts. On December 3, 2014, after petitioner's arraignment but before his sentencing, petitioner's counsel moved to withdraw from representation. The basis of counsel's motion was that she had learned of a conflict of interest that would arise if she continued to represent petitioner. See Mot. Withdraw (DE 24). The court granted ...


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