United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
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. 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
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.
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.
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 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).
Motion to Vacate
Petitioner fails to state a claim of ineffective assistance
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.
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.
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 ...