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 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. For the reasons that follow, the court
denies petitioner's motion to vacate and grants the
government's motion to dismiss.
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).
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.
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.
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.
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).
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 claim.
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 ...