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Powell v. United States

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

May 23, 2017



          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 485). Also before the court is the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 493). 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.


         On April 29, 2015, petitioner was charged in a fourteen-count superseding indictment. On August 4, 2015, pursuant to a written plea agreement, petitioner pleaded guilty to the following: conspiracy to manufacture, distribute, dispense and possess with intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine (Count One); and possession of a firearm in furtherance of a drug trafficking offense (Count Nine).

         Petitioner's sentencing was held on January 5, 2016. In calculating petitioner's Guidelines range, the court began with a base offense level of 32, which was based upon the weight of pseudoephedrine and applied a two-level enhancement because the court found that petitioner maintained a premises for the purpose of manufacturing or distributing a controlled substance. See U.S.S.G. § 2D1.1(b)(12). The court applied another two-level enhancement because the offense involved (i) an unlawful discharge, emission, or release into the environment of a hazardous or toxic substance; or (ii) the unlawful transportation, treatment, storage, or disposal of hazardous waste. See U.S.S.G. § 2D1.1(b)(13)(A). A four-level enhancement was then applied because petitioner was found to be an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. See U.S.S.G. § 3B1.1(a). Then, a two-level enhancement was applied because the court determined that petitioner willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and the obstructive conduct related to the offense of conviction and any relevant conduct; or a closely related offense. See U.S.S.G. § 3C1.1.

         Petitioner's adjusted offense level subtotal was 42. Petitioner was found to be a career offender, which also resulted in an offense level of 42. Petitioner's offense level was then decreased by three levels for acceptance of responsibility. See U.S.S.G. § 3E1.1(a), (b). Petitioner's Guideline range was determined to be 420 months to life, which was based on a total offense level of 39 and a criminal history category of VI.[2]

         The court sentenced petitioner to a total of 420 months' imprisonment: 360 months on Count One and 60 months on Count Nine, to be served consecutively. See J. (DE 401). Petitioner did not appeal his judgment.

         On December 27, 2016, petitioner filed the instant motion to vacate under 28 U.S.C. § 2255, arguing that his attorney provided ineffective assistance of counsel by failing to object to the application of the following guideline enhancements: 1) U.S.S.G. § 2D1.1(b)(12), 2) U.S.S.G. § 2D1.1(b)(13)(A), and 3) U.S.S.G. § 3C1.1. In its motion to dismiss, the government argues that petitioner's § 2255 motion should be dismissed because he has failed to state a claim under Strickland v. Washington, 466 U.S. 668 (1984).


         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 claim.

         Petitioner has raised three ineffective assistance of counsel claims. See Mot. Vacate (DE 485). In order to establish ineffective assistance of counsel, a petitioner must satisfy a two-pronged test. See Strickland, 466 U.S. at 687. First, 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. Under the second prong, a petitioner must show that he was prejudiced by the ineffective assistance by showing “a reasonable probability that, but for ...

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