United States District Court, E.D. North Carolina, Northern 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, as corrected and amended (DE 105, 108).
Also before the court is the government's motion to
dismiss, made pursuant to Federal Rule of Civil Procedure
12(b)(6). (DE 110). 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.
December 18, 2014, petitioner pleaded guilty, pursuant to a
written plea agreement, to the following: conspiracy to
distribute and possess with intent to distribute 28 grams or
more of cocaine base (crack), in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(B) (Count One): possession of
a firearm during and in relation to a drug trafficking crime,
in violation of 18 U.S.C. §§ 924(c) and
924(c)(1)(A)(i) (Count Thirteen); and possession of a stolen
firearm, in violation of 18 U.S.C. §§ 922(j) and
924(a)(2) (Count Fifteen).
6, 2015, petitioner was sentenced to a total term of 165
months' imprisonment. Petitioner appealed his judgment, but
the Fourth Circuit Court of Appeals dismissed in part and
affirmed in part. See United States v. Washington,
632 F. App'x 106 (4th Cir. 2015).
27, 2016, petitioner filed the instant motion to vacate under
28 U.S.C. § 2255, arguing: 1) his trial counsel provided
ineffective assistance by failing to contest the quantity of
crack cocaine attributable to him; 2) his trial counsel
provided ineffective assistance by failing to contest Count
Thirteen; 3) his trial counsel provided ineffective
assistance by failing to raise various cases in response to
his § 924(c) charge; and 4) under Johnson v. United
States, 135 S.Ct. 2551 (2015), he is not guilty. In its
motion to dismiss, filed on February 13, 2017, the government
argues that petitioner's § 2255 motion should be
dismissed for failure to state a claim upon which relief can
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 a claim of ineffective assistance
has raised three ineffective assistance of counsel claims.
See Mot. Vacate (DE 108). In order to establish
ineffective assistance of counsel, a petitioner must satisfy
a two-pronged test. See Strickland v. Washington,
466 U.S. 668, 687 (1984). Under the first prong, 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. The second prong requires a petitioner to show
that he was prejudiced by the ineffective assistance by
showing “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
694. This court will apply the Strickland standard
to each of petitioner's claims in turn.
Failed to contest quantity
first claim, petitioner alleges that his trial counsel
provided ineffective assistance by failing to contest the
quantity of crack cocaine attributable to him. Mot. Vacate
(DE 108) at 4. Petitioner argues that if not for this ...