United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge.
January 13, 2017, Andrew Wayne Landells
("Landells") moved under 28 U.S.C. § 2255 to
vacate, set aside, or correct his 180-month sentence [D.E.
88]. On May 1, 2017, the government moved to dismiss
Landells's section 2255 motion [D.E. 92] and filed a
memorandum in support [D.E. 93]. On May 22, 2017, Landells
responded in opposition to the government's motion [D.E.
95]. As explained below, the court grants the
government's motion to dismiss and dismisses
Landells's section 2255 motion.
September 3 0, 2013, pursuant to a plea agreement, Landells
pleaded guilty to conspiracy to launder monetary instruments
in violation of 18 U.S.C. § 1956(h). See [D.E. 34, 35].
On November 18, 2014, at Landells's sentencing hearing,
the court calculated Landells's total offense level to be
37, his criminal history category to be U, and his advisory
guideline range to be 235 to 240 months' imprisonment.
See Sentencing Tr. [D.E. 80] 24-25. After granting the
government's motion under U.S.S.G. § 5K1.1 and
thoroughly considering all relevant factors under 18 U.S.C.
§ 3553(a), the court sentenced Landells to 180
months' imprisonment. See Sentencing Tr. at 25-48.
appealed. On October 9, 2015, the United States Court of
Appeals for the Fourth Circuit enforced the appellate waiver
in Landells's plea agreement, affirmed Landells's
conviction, and dismissed Landells's appeal concerning
his sentence. See United States v. Landells. 628
F.App'x 177, 177-78 (4th Cir. 2015) (per curiam)
January 13, 2017, Landells filed his section 2255 motion
[D.E. 88]. In his motion, Landells alleges ineffective
assistance of counsel for failing to argue that the firearm
enhancement did not apply under U.S.S.G. § 2D1.1(b)(1)
and failing to argue that the enhancements under U.S.S.G.
§ 2S 1.1 (b)(3) and § 3Bl.l(a) were
unconstitutionally vague under Johnson v. United
States. 135 S.Ct. 2551 (2015). See [D.E. 88-1] 2-9.
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 Ashcroftv.Iqbal. 556 U.S.
662, 677-78 (2009); Bell Atl. Corp. v. Twomblv. 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. 320 (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. Fradv. 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 Ctv. 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.
Landells'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. 133, 140 (2012);
Lafler v. Cooper. 566 U.S. 156, 164-65 (2012);
Glover v. United States. 531 U.S. 198, 203-04
(2001). "[Sentencing 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, Landells 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 Blackledge v. Allison. 431 U.S. 63, 74 n.4
(1977); United States v. Dvess. 730 F.3d 354, 359-60
(4th Cir. 2013).
Landells's ineffective-assistance claims concerning
sections 2D 1.1 (b)(1), 2S1.1 (b)(3), and 3B1.1 (a), Landells
cannot use section 2255 to attack retroactively his advisory
guideline range. See, e.g.. United States v. Foote.
784 F.3d 931.935-36 (4th Cir. 2015); United States v.
Pregent. 190 F.3d 279, 283-84 (4th Cir. 1999); see also
Whiteside v. United States. 775 F.3d 180, 183-87
(4th Cir. 2014) (en banc); United States v.
Mikalajunas. 186 F.3d 490, 495-96 (4th Cir. 1999). Thus,
the claims fail.
the claim concerning section 2D 1.1 (b)(1) fails because the
court properly applied the enhancement under section 2D 1.1
(b)(1). See Presentence Investigation Report [D.E. 59]
¶¶ 1-27, 58; Sentencing Tr. at 18-24; see also
United States v. Mondragon. No. 16-4139, 2017 WL
2661599, at *2-4 (4th Cir. June 21, 2017); United States
v. Slade. 631 F.3d 185, 188-89 (4th Cir. 2011);
United States v. Manigan. 592 F.3d 621, 628-32 (4th
Cir. 2010); United State v. Harris. 128 F.3d 850,
852-53 (4th Cir. 1997). Accordingly, there was no deficient
performance or prejudice. See, e.g.. Bobby,
558 U.S. at 11-12; Strickland. 466 U.S. at 689-700.
if counsel had challenged U.S.S.G. § 2S1.1(b)(3) and
§ 3BU(a) as unconstitutionally vague, the argument would
have failed. See, e.g.. Beckles v. United
States. 137 S.Ct. 886, 895-07 (2017); United States
v. Mack. 855 F.3d 581, 584-85 (4th Cir. 2017);
United States v. Lee. 855 F.3d 244, 246-47 (4th Cir.
2017). Thus, there was no deficient performance or prejudice.
See, e&, Bobby. 558 U.S. at 11-12;
Strickland. 466 U.S. at 689-700.
reviewing the claims presented in Landells's motion, the
court finds that reasonable jurists would not find the
court's treatment of Landells's claims debatable or
wrong and that the claims deserve no encouragement to proceed
any further. Accordingly, the court denies a certificate of
appealability. See 28 U.S.C. § 2253(c); Mi ...