United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYUE UNITED STATES DISTRICT JUDGE.
matter is before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 [DE 28] and the government's motion to
dismiss [DE 32]. The matters are fully briefed and ripe for
adjudication. For the following reasons, the government's
motion to dismiss is granted and petitioner's § 2255
petition is denied.
September 15, 2015, petitioner pleaded guilty, without a
written plea agreement, to conspiracy to distribute and
possess with the intent to distribute a quantity of heroin,
in violation of 21 U.S.C. § 846. [DE 19]. On December
21, 2015, the Court sentenced petitioner to 50 months'
imprisonment and 10 years' supervised release. [DE 23,
24]. Petitioner did not appeal his judgment.
December 27, 2016, petitioner filed the instant motion under
§ 2255. [DE 28]. In support of his motion to vacate his
sentence, petitioner alleges the following claims: (1)
ineffective assistance of counsel for coercing petitioner
into pleading guilty [DE28 at 4, 6]; (2) ineffective
assistance of counsel for allegedly promising that petitioner
would be able to reduce his sentence by taking a drug program
in prison but failing to challenge a firearm enhancement
(which allegedly prevented petitioner from entering the drug
program) at sentencing [DE 28 at 4, 6]; (3) ineffective
assistance of counsel for allegedly not adequately nor
competently informing petitioner of the facts of his case,
the law, and the consequences of pleading guilty; and (4)
that petitioner is actually innocent of his offense of
conviction [DE 28 at 5, 8-9]. In response, the government
filed a motion to dismiss for failure to state a claim upon
which relief can be granted pursuant to Federal Rule of Civil
Procedure 12(b)(6). [DE 33].
survive a motion to dismiss pursuant to Rule 12(b)(6),
[petitioner's] '[f]actual allegations must be enough
to raise a right to relief above the speculative level, '
thereby 'nudg[ing] their claims across the line from
conceivable to plausible.'" Aziz v. Alcolac
Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). "Under § 2255(b), [u]nless the motion and
files and records of the case conclusively show that the
prisoner is entitled to no relief, the court must grant a
prompt hearing to determine the issues and make findings of
fact and conclusions of law with respect thereto."
United States v. Thomas, 627 F.3d 534, 539 (4th Cir.
2010) (internal quotation omitted). However, "vague and
conclusory allegations contained in a § 2255 petition
may be disposed of without further investigation by the
District Court." United States v. Dyess, 730
F.3d 354, 359 (4th Cir. 2013) (quoting United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
raises several claims of ineffective assistance of counsel in
support of his motion to vacate his sentence. In order to
demonstrate that the assistance of counsel fell below the
level of effectiveness guaranteed by the Sixth Amendment,
petitioner must show (1) deficient performance, meaning that
"counsel's representation fell below an objective
standard of reasonableness" and (2) resulting prejudice,
meaning that "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 694 (1984).
The Court must "judge the reasonableness of
counsel's conduct on the facts of the particular case,
viewed as of the time of counsel's conduct, " and
"(j]udicial scrutiny of counsel's performance must
be highly deferential." Roe v. Flores-Ortega,
528 U.S. 470, 477 (2000) (citing Strickland, 466
U.S. at 689-90). In accordance with Strickland, the
prejudice prong is evaluated first if the lack of sufficient
prejudice alone can dispose of the ineffective assistance
claim. Strickland, 466 U.S. at 697.
prevail under the prejudice prong of Strickland when
challenging a guilty plea, petitioner must show that
"there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial." Hill v.
Lockhart, 47'4 U.S. 52, 59 (1985). A petitioner must
further convince the court that going to trial "would
have been rational under the circumstances." Padilla
v. Kentucky, 559 U.S. 356, 372 (2010). "The
challenger's subjective preferences, therefore, are not
dispositive; what matters is whether proceeding to trial
would have been objectively reasonable in light of all of the
facts." United States v. Fugit, 703 F.3d 248,
260 (4th Cir. 2012).
first claim alleges that counsel coerced petitioner into
pleading guilty. However, petitioner's testimony at
arraignment belies this claim. At petitioner's
arraignment the Court explained the possible terms of
punishment and supervised release associated with each
charge, and petitioner stated that he understood the charges
and punishments he faced, and that he had read over the plea
agreement, discussed it with his lawyer, understood it, and
had no questions about it. [DE 38 at 3-6]. Petitioner
affirmed, under oath, that he was satisfied with the work his
lawyer has done and denied that he was "pressured or
forced in any way to plead guilty." Id. at 5.
The Court considers these statements in light of Fourth
Circuit precedent stating, "in the absence of
extraordinary circumstances, ... allegations in a § 2255
motion that directly contradict the petitioner's sworn
statements made during a properly conducted Rule 11 colloquy
are always palpably incredible and patently frivolous or
false." United States v. Lemaster, 403 F.3d
216, 221 (4th Cir. 2005). Accordingly, and in the absence of
any allegation of extraordinary circumstances, the Court
cannot find that petitioner's counsel was ineffective by
coercing petitioner to plead guilty when petitioner affirmed
under oath that he was satisfied with counsel's
performance and denied under oath that he was coerced or
pressured in any way. As there is no deficient performance,
this claim of ineffective assistance fails.
second claim alleges that counsel was ineffective for
allegedly promising that petitioner would be able to reduce
his sentence by taking a drug program in prison but failing
to challenge a firearm enhancement at sentencing. Petitioner
claims this failure prevented him from entering the drug
program. As before, this claim is contradicted by
petitioner's sworn statements at his arraignment. At his
arraignment, petitioner affirmed, under oath, that he was
satisfied with the work his lawyer has done and denied that
he was "pressured or forced in any way to plead
guilty." [DE 38 at 5]. Petitioner affirmed that he
understood that, upon the Court's acceptance of his plea,
it would be "final" and he could not "start
over again." Id. The Court again emphasized
that point by saying, "What you do today counts, in
other words, " and petitioner again answered in the
affirmative that he understood. Id. Given these
statements and the absence of any allegation of extraordinary
circumstances, petitioner cannot now claim that his plea was
involuntary or that he pled guilty only because of a coercive
promise. These statements also establish that petitioner was
aware of the finality of his plea, and petitioner cannot
claim that he would not have pled guilty on the day of his
arraignment based on events that may or may not have occurred
at his future sentencing. Additionally, petitioner has not
shown, for reasons discussed further below, that it would
have been rational to plead not guilty and proceed to trial.
Ballard, 792 F.3d at 452. For these reasons,
petitioner's second claim fails.
also alleges that counsel did not adequately or competently
inform petitioner of the facts of his case, the law, and the
consequences of pleading guilty. For similar reasons as
discussed above, this claim fails because petitioner
affirmed, under oath, that he understood the nature of the
charges against him and the consequences of pleading guilty.
At his arraignment, the Court discussed in detail what rights
petitioner would give up by pleading guilty and petitioner
affirmed that he understood this and was willing to give
those rights up. [DE 38 at 3-6]. The Court also described the
charge against petitioner and the punishment petitioner faced
as a result of that charge. Petitioner again affirmed that he
understood. Id. Additionally, petitioner has not
alleged any facts which demonstrate that the result of the
proceeding would have been different if counsel had acted in
a different manner, Strickland, 466 U.S. at 694, or
to show that it would have been rational under these
circumstances to reject the plea bargain. Ballard,
792 F.3d at 452.
final claim alleges that he is innocent of his offense of
conviction. Because it was not advanced on direct appeal,
this claim is procedurally defaulted unless petitioner can
show cause and prejudice or actual innocence. Dretke v.
Haley, 541 U.S. 386, 393 (2004); United States v.
Carter et al, 581 F.App'x 206 (4th Cir. 2014)
(unpublished). To establish actual innocence, petitioner must
be able to show that-in light of all the evidence-it is more
likely than not that no reasonable juror would have convicted
him. See Bousley v. United States, 523 U.S. 614, 623
(1998) (quoting Schlup v. Delo, 513 U.S. 298,
327-328 (1995)). Petitioner has failed to meet this burden.
First, petitioner admitted in Court, under oath, that he was
actually guilty of the offense of conspiracy to distribute
and possess with intent to distribute a quantity of heroin.
[DE 38 at 5-6]. Additionally, the government summarized its
evidence against defendant at the arraignment and the
pre-sentence report outlined the evidence against petitioner
for this charge, and petitioner declined to challenge
anything included in those reports. The presentence
investigation report ("PRS") indicated, among other
things, that petitioner gave an unprotected statement to law
enforcement that "prior to the officers['] arrival,
" he had, among other things, 50 bricks of heroin
"delivered to him at his residence" and that he
"left the residence with the drugs shortly before
officers arrived to retrieve money to pay for the
drugs." [DE 21 at 4-5, ¶ 10]. Petitioner cannot
show, in light of the evidence described in the PSR and
proffered by the government at the arraignment and
sentencing, that it is more likely than not that no
reasonable juror would have convicted him for this charge.
Bousley, 523 U.S. at 623. Therefore, this claim also
these reasons, petitioner cannot state a claim upon which
relief may be granted and his § ...