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Washington v. United States

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

June 12, 2017

D'QUEL NAJAE WASHINGTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          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, 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.

         BACKGROUND

         On 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).

         On May 6, 2015, petitioner was sentenced to a total term of 165 months' imprisonment.[1] 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).

         On May 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 be granted.

         COURT'S DISCUSSION

         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 a claim of ineffective assistance of counsel.

         Petitioner 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.

         a. Failed to contest quantity

         In his 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 ...


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