United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge.
January 29, 2016, Asael Gomez-Jimenez
("Gomez-Jimenez") moved pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct his 324-month
sentence [D.E. 323]. On March 21, 2016, Gomez-Jimenez filed a
motion for discovery [D.E. 328]. On December 5, 2016, the
government moved to dismiss Gomez-Jimenez's section 2255
motion [D.E. 342] and filed a memorandum in support [D.E.
343]. On February 13, 2017, Gomez-Jimenez responded in
opposition [D.E. 354]. As explained below, the court denies
Gomez-Jimenez's motion for discovery, grants the
government's motion to dismiss, and dismisses
Gomez-Jimenez's section 225 5 motion.
March 10, 2014, Asael Gomez-Jimenez
("Gomez-Jimenez") pleaded guilty to possession with
intent to distribute a quantity of cocaine and aiding and
abetting (count eight), and elude examination and inspection
by immigration officers (count ten). See [D.E. 182]. On March
13, 2014, a jury found Gomez-Jimenez guilty of conspiracy to
distribute and possess with intent to distribute 5 kilograms
of cocaine (count one), and possession with intent to
distribute 28 grams or more of cocaine base (crack) (count
five). See [D.E. 196].
8, 2014, the court held Gomez-Jimenez's sentencing
hearing. See Sentencing Tr. [D.E. 257]. At the hearing, the
court adopted the facts set forth in the Presentence
Investigation Report ("PSR") except as to matters
in dispute. See Id. at 5-6. The court ruled on
Gomez-Jimenez's objections to the PSR and calculated
Gomez-Jimenez's total offense level to be 39, his
criminal history category to be I, and his advisory guideline
range to be 262 to 327 months' imprisonment on count one.
See Id. at 5-12; PSR [D.E. 210] ¶¶ 66-79.
The advisory guideline range on count five and count eight
was 240 months' imprisonment. See Sentencing Tr. at 11.
The advisory guideline range on count ten was six months. See
Id. After thoroughly considering all relevant
factors under 18 U.S.C. § 3553(a), the court sentenced
Gomez-Jimenez to 324 months' imprisonment on count one,
240 months' imprisonment on counts five and eight, and 6
months' imprisonment on count ten, to run concurrently
for a total term of 324 months' imprisonment. See
Id. at 20-27; [D.E. 225] 3.
appealed. On September 29, 2015, the United States Court of
Appeals for the Fourth Circuit affirmed Gomez-Jimenez's
conviction and sentence. See United States v.
Gomez-Jimenez. 625 F.App'x 602, 604-06 (4th Cir.
2015) (per curiam) (unpublished).
January 29, 2016, Gomez-Jimenez filed his section 2255 motion
[D.E. 323] and a memorandum in support [D.E. 323-1]. In his
motion, Gomez-Jimenez makes four claims: (1)that his trial
and appellate counsel were ineffective by failing to show
that the district court abused its discretion in denying
Gomez-Jimenez's co-defendant's motion to suppress
concerning his co-defendant's residence; (2) that his
trial and appellate counsel were ineffective by failing to
show that the district court abused its discretion by failing
to determine if Gomez-Jimenez maintained the premises where
cocaine and firearms were recovered; (3) that his appellate
counsel was ineffective by failing to challenge the admission
of wiretap evidence; and, (4) that his trial and appellate
counsel were ineffective by failing to challenge the
unidentified voices on the wiretaps. See [D.E. 323] 1-10.
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests a claim's legal and
factual sufficiency. See Ashcroft v. Iqbal. 556 U.S.
662, 677-78 (2009); Bell Atl. Corp. v. Twombly. 550
U.S. 544, 555-63, 570 (2007); Coleman v. Md. Court of
Appeals. 626 F.3d 187, 190 (4th Cir. 2010), affd, 566
U.S. 30 (2012); Giarratano v. Johnson. 521 F.3d
298.302 (4th Cir. 2008); accord Erickson v. Pardus.
551 U.S. 89, 93-94 (2007) (per curiam). The government may
challenge the legal sufficiency of a section 2255 petition
through a motion to dismiss under Rule 12(b)(6). See Rule 12,
Rules Governing Section 2255 Proceedings; United States
v. Frady. 456 U.S. 152, 166-68 n.15 (1982); United
States v. Reckmever. 900 F.2d 257, at *4 (4th Cir. 1990)
(unpublished table decision). In considering a motion to
dismiss, a court need not accept a complaint's legal
conclusions. See, e.g.. Iqbal. 556 U.S. at
678. Similarly, a court "need not accept as true
unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano. 521 F.3d at 302
(quotation omitted): see Iqbal 556 U.S. at 677-79.
Moreover, a court may take judicial notice of public records
without converting a motion to dismiss into a motion for
summary judgment. See, e.g.. Fed.R.Evid. 201;
Tellabs. Inc. v. Makor Issues & Rights. Ltd..
551 U.S. 308, 322 (2007); Philips v. Pitt Cty. Mem'l
Hosp.. 572 F.3d 176, 180 (4th Cir. 2009). In reviewing a
section 2255 motion, the court is not limited to the motion
itself. The court also may consider "the files and
records of the case." 28 U.S.C. § 2255(b); see
United States v. McGill. 11 F.3d 223, 225 (1st Cir.
extent Gomez-Jimenez contends that the district court erred
concerning Gomez-Jimenez's co-defendant's motion to
suppress, concerning the court's failure to conduct an
evidentiary hearing, or concerning the admission of the
wiretap evidence or the unidentified voices on the wiretap,
Gomez-Jimenez failed to raise these claims on direct appeal.
Thus, the general rule of procedural default bars
Gomez-Jimenez from presenting these claims under section
2255. See. e.g.. Massaro v. United States. 538 U.S.
500, 504 (2003); Bousley v. United States. 523 U.S.
614, 621 (1998); United States v. Fugit. 703
F.3d248, 253 (4th Cir. 2012); United States v.
Sanders. 247 F.3d 139, 144 (4th Cir. 2001). Furthermore,
Gomez-Jimenez has not plausibly alleged "actual
innocence" or "cause and prejudice" resulting
from the alleged errors about which he now complains. See
Bousley. 523 U.S. at 622-24; Coleman v.
Thompson. 501 U.S. 722, 753 (1991); Frady. 456
U.S. at 170; United States v. Pettiford. 612 F.3d
270, 280-85 (4th Cir. 2010); United States v.
Mikalajunas. 186 F.3d 490, 493-95 (4th Cir. 1999).
Accordingly, the claims fail.
Gomez-Jimenez's ineffective-assistance claims,
"[t]he Sixth Amendment entitles criminal defendants to
the effective assistance of counsel-that is, representation
that does not fall below an objective standard of
reasonableness in light of prevailing professional
norms." Bobby v. Van Hook. 558 U.S. 4, 7 (2009)
(per curiam) (quotations omitted). The Sixth Amendment right
to counsel extends to all critical stages of a criminal
proceeding, including plea negotiations, trial, sentencing,
and appeal. See, e.g.. Missouri v.
Frye. 566 U.S. 134, 141 (2012); Lafler v.
Cooper. 566 U.S. 156, 165 (2012); Glover v. United
States. 531 U.S. 198, 203-04 (2001). "[S]entencing
is a critical stage of trial at which a defendant is entitled
to effective assistance of counsel, and a sentence imposed
without effective assistance must be vacated and reimposed to
permit facts in mitigation of punishment to be fully and
freely developed." United States v.
Breckenridge. 93 F.3d 132, 135 (4th Cir. 1996); see
Glover. 531 U.S. at 203-04. To state a claim of
ineffective assistance of counsel in violation of the Sixth
Amendment, Gomez-Jimenez must show that his attorney's
performance fell below an objective standard of
reasonableness and that he suffered prejudice as a result.
See Strickland v. Washington. 466 U.S. 668, 687-91
determining whether counsel's representation was
objectively unreasonable, a court must be "highly
deferential" to counsel's performance and must
attempt 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. A
party also must show that counsel's deficient performance
prejudiced the party. See Id. at 691-96. A party
does so by showing that there is a "reasonable
probability" that, but for the deficiency, "the
result of the proceeding would have been different."
Id. at 694.
court hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury."
Id. at 695. When analyzing an ineffectiveness claim,
a court may rule based on its own familiarity with the case.
See Blackledee v. Allison. 431 U.S. 63, 74 n.4
(1977); United States v. Dyess. 730 F.3d 354, 359-60
(4th Cir. 2013).
Gomez-Jimenez's claim that his trial counsel and
appellate counsel were ineffective by failing to show that
the district court abused its discretion in denying
Gomez-Jimenez's co-defendant Anthony Wiggins's motion
to suppress concerning Wiggins's residence, the claim
fails. Although trial counsel's failure to file a
suppression motion "does not constitute per se
ineffective assistance of counsel, " it may form the
basis of an ineffective-assistance claim. Kimmelman v.
Morrison, 477 U.S. 365, 384 (1986). To state a claim of
deficient performance, Gomez-Jimenez must plausibly allege
that he (Gomez-Jimenez) had a meritorious Fourth Amendment
claim concerning the search of Wiggins's residence.
Id. at 382. Gomez-Jimenez, however, has failed to
plausibly allege that he had a valid Fourth Amendment claim
concerning the search of Wiggins's residence.
Gomez-Jimenez had no reasonable expectation of privacy in
Wiggins's residence. See. e.g..
Minnesota v. Carter. 525 U.S. 83, 89 -91 (1998);
United States v. Padilla. 508 U.S. 77, 78-82 (1993)
(per curiam); Rakas v. Illinois. 439 U.S. 128,
143-49 (1978); United States v. Gray. 491 F.3d 138,
146-47 (4th Cir. 2007); cf [D.E. 39] (order denying
Wiggins's motion to suppress), affd.
Gomez-Jimenez. 625 F.App'x at 603-04. Thus,
counsels' performance was not deficient, and the claim
fails. See Knowles v. Mirazayance. 556 U.S. Ill.
Gomez-Jimenez's claim that this trial counsel and
appellate counsel were ineffective by failing to show that
the district court abused its discretion by not holding an
evidentiary hearing to determine if Gomez-Jimenez maintained
the premises where cocaine and firearms were recovered, the
claim fails as to performance. Gomez-Jimenez has not
plausibly alleged that he had a meritorious Fourth Amendment
claim concerning the search of the premises where authorities
recovered cocaine and firearms. See Kimmelman. 477
U.S. at 384; cf [D.E. 299] 9-10, 78-83, 87-97, 99, 109-16;
[D.E. 299-1], 63-104, 149-63, 167-69, 182-86, 199-200,
205-44, 301, 302-19, 320-76; [D.E. 299-2] 384-99, 427,
538-41. A motion to suppress ...