United States District Court, E.D. North Carolina, Southern Division
C. DEVER III Chief United States District Judge.
December 28, 2015, Devone Sharnell Best ("Best")
moved under 28 U.S.C. § 2255 to vacate, set aside, or
correct his 180-month sentence [D.E. 130] and filed memoranda
in support [D.E. 130-1, 131]. On July 18, 2016, the
government moved to dismiss Best's section 2255 motion
for failure to state a claim upon which relief can be granted
[D.E. 136] and filed a memorandum in support [D.E. 137]. On
August 8, 2016, Best replied [D.E. 140]. On August 19, 2016,
the court stayed the action pending the Supreme Court's
decision in Beckles v. United States, See [D.E.
142]. On May 8, 2017, the government moved to lift the stay
and dismiss Best's motion [D.E. 144] and filed a
supporting memorandum [D.E. 145]. On May 8, 2017, the court
lifted the stay [D.E. 146] and thereafter received briefing
on Beckles v. United States, 137 S.Ct. 886 (2017).
See [D.E. 147, 148]. As explained below, the court grants the
government's motion to dismiss and dismisses Best's
August 3 0, 2013, pursuant to a written plea agreement, Best
pleaded guilty to distribution of a quantity of cocaine base
("crack") in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C) [D.E. 78, 80, 94]. On May 28,
2014, the court sentenced Best [D.E. 108, 113, 118].
Best's advisory guideline range to be 151 to 188
months' imprisonment, and sentenced Best to 180
months' imprisonment. See [D.E. 118] 23-48. Best
appealed. On April 20, 2015, the United States Court of
Appeals for the Fourth Circuit affirmed Best's conviction
and sentence. See United States v. Best, 60
Fed.App'x 97, 98-99 (4th Cir. 2015) (per curiam)
Best's section 2255 motion, Best makes six claims: (1)
the government "overcharged" Best; (2) the
government violated the Speedy Trial Act; (3) insufficient
evidence supported Best's guilty plea; (4) the district
court abused its discretion and clearly erred when it
declined to allow Best to withdraw his guilty plea; (4)
ineffective assistance of counsel and prosecutorial
misconduct because neither his counsel nor the prosecutor
advised Best that he could be a career offender; and, (5)
Best is not a career offender. See [D.E. 130] 4-14. In his
memorandum, Best also claims that he is not a career offender
under Johnson v. United States, 135 S.Ct. 2551
(2013), and that his sentence violated Allevne v. United
States, 133 S.Ct. 2151 (2013). See [D.E. 130-1] 9-22.
Best also claims ineffective assistance of counsel arising
from a deficient investigation. See Id. at 23-25.
Best requests immediate release. See Id. at 26. Best
expounds on these contentions in his memorandum. See [D.E.
131]. The government moves to dismiss the motion for failure
to state a claim upon which relief can be granted. See [D.E.
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 complaint'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, 562-63, 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). 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 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. 1993). Likewise, a
court may rely on its own familiarity with the case.
See. e.g.. Blackledee v. Allison,
431 U.S. 63, 74 n.4 (1977); United States v. Dyess,
730 F.3d 354, 359-60 (4th Cir. 2013).
Best's claims that the government "overcharged"
him, violated the Speedy Trial Act, and provided insufficient
evidence to support his guilty plea, that he is not a career
offender, and that Best's sentence violated
Alleyne, Best failed to raise these claims on direct
appeal. Thus, the general rule of procedural default bars
Best 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.3d 248,
253 (4th Cir. 2012); United States v. Sanders, 247
F.3d 139, 144 (4th Cir. 2001). Furthermore, Best has not
plausibly alleged "actual innocence" or "cause
and prejudice" resulting from alleged errors about which
he now complains. See Bousley, 523 U.S. at 622-24;
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, these claims all fail.
Best's claim concerning this court's refusal to
permit him to withdraw his guilty plea, Best raised that
claim on direct appeal and lost. See Best 600
F.App'x at 98-99. Best cannot use section 2255 to
recharacterize and relitigate a claim he lost on direct
appeal. See, e.g., Frady, 45 U.S. at 164-65;
Dvess, 730 F.3d at 360; United States v.
Roane, 378 F.3d 382, 296 & n.7 (4th Cir. 2004);
Boeckenhaupt v. United States, 537 F.2d 1182, 1183
(4th Cir. 1976) (per curiam). Thus, this claim fails.
Best may not bring his claims challenging his career-offender
status under section 2255. A petitioner generally may not use
section 2255 to challenge the calculation of his advisory
guideline range. See United States v. Foote, 784
F.3d 931, 936-40 (4th Cir. 2015): United States v.
Pregent 190 F.3d279, 283-84 (1999V see also
Whiteside v. United States, 775 F.3d 180, 183-87 (4th
Cir. 2014) (en banc); Milralajimas 186 F.3d at
495-96. Thus, these claims fail.
Alternatively, Best's plea agreement contains an
appellate waiver. See [D.E. 80] ¶ 2(c). In the waiver,
Best agreed [t]o waive knowingly and expressly all rights,
conferred by 18 U.S.C. § 3742, to appeal whatever
sentence is imposed, including any issues that relate to the
establishment of the advisory Guideline range, reserving only
the right to appeal from a sentence in excess of the
applicable advisory Guideline range that is established at
sentencing, and further to waive all rights to contest the
conviction or sentence in any post-conviction proceeding,
including one pursuant to 28 U.S.C. § 2255, excepting an
appeal or motion based upon grounds of ineffective assistance
of counsel or prosecutorial misconduct not known to the
Defendant at the time of the Defendant's guilty plea. The
foregoing appeal waiver does not constitute or trigger a
waiver by the United States of any of its rights to appeal
provided by law.
Id. In light of Best's Rule 11 proceeding, the
appellate waiver is enforceable. See United States v.
Copeland, 707 F.3d 522, 528-30 (4th Cir. 2013);
United States v. Davis, 689 F.3d 349, 354-55 (4th
Cir. 2012) (per curiam); United States v.
Thornsburv, 670 F.3d 532, 537 (4th Cir. 2012);
United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005). Other than Best's ineffective-assistance
of counsel and prosecutorial misconduct claims, Best's
other claims fall within the appellate waiver. Accordingly,
the waiver bars these other claims.
Alleyne announced a purely procedural rule that does
not apply retroactively on collateral review. See, e.g.,
Whorton v. Bocktine, 549 U.S. 406, 416-18 (2007)
(describing framework used to analyze retroactivity on
collateral review); Butterworth v. United States,
775 F.3d 459, 465 & n.4 (1st Cir. 2015); Hughes v.
United States, 770 F.3d 814, 818-19 (9th Cir. 2014);
In re Mazzio, 756 F.3d 487, 488 (6th Cir.
2014); United States v. Winkelman, 746 F.3d 134, 136
(3d Cir. 2014); United States v. Harris, 741 F.3d
1245, 1250 n.3 (11th Cir. 2014); United States v.
Redd, 735 F.3d 88, 91-92 (2d Cir. 2013); United
States v. Stewart 540 F.App'x 171, 172 n.* (4th Cir.
2013) (per curiam) (unpublished); In re Pavne, 733
F.3d 1027, 1029-30 (10th Cir. 2013) (per curiam); In re
Kemper, 735 F.3d 211, 212 (5th Cir. 2013); Simpson
v. United States, 721 F.3d 875, 876 (7th Cir. 2013).
Furthermore, Alleyne does not affect a court's
ability to apply the advisory guidelines, including making
findings of fact that do not affect a statutory minimum or
maximum. See. e.g., Allevne, 133 S.Ct. at
2163; United States v. Benn, 572 F.App'x 167,
179-80 & n.4 (4th Cir. 2014) (per curiam) (unpublished)
(collecting cases); United States v. Ramirez-Negron,
751 F.3d 42, 48-49 (1st Cir. 2014) (collecting cases);
United States v. Gibbs, 547 F.App'x 174, 185 n.4
(4th Cir. 2013) (per curiam) (unpublished); United States
v. Johnson, 732 F.3d 577, 583-84 (6th Cir. 2013);
United States v. Clavbrooks, 729 F.3d 699, 707-08
(7th Cir. 2013). This court's findings of fact at
sentencing did not violate Alleyne, Accordingly,
Alleyne does not help Best.
Best cannot use Johnson retroactively in this
section 2255 action to challenge the Guidelines as vague or
to challenge his career-offender status. See,
e.g., Beckles, 137 S.Ct. at 895-97;
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, Best's Johnson
Best's ineffective assistance of counsel 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 ...