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Ellis v. United States

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

June 27, 2017

MARY SHANTA ELLIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Malcolm J. Howard Senior United States District Judge

         This matter is before the court on the government's motion to dismiss, [D.E. #297], petitioner's motion to vacate her sentence under 28 U.S.C. § 2255, [D.E. #281]. Petitioner has filed a response, [D.E. #301], and this matter is ripe for adjudication.

         BACKGROUND

         On July 7, 2014, petitioner, pursuant to a written plea agreement, entered a plea of guilty to conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count One). In her written plea agreement, petitioner expressly waived her right to appeal whatever sentence was imposed on any ground, "including any issues that relate to the establishment of the advisory [g]uideline range, " reserving only the right to appeal a sentence imposed in excess of the applicable advisory guidelines and additionally 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. . ." [D.E. #133 at 1].

         In the plea agreement, the parties agreed a downward adjustment of three levels for acceptance of responsibility was warranted. The parties also agreed a "downward variance of two base offense levels" was appropriate in accordance with the then-pending revision to United States Sentencing Guidelines ("USSG") § 2D1.1.[1] Following preparation of the Presentence Investigation Report (PSR), the base offense level was calculated to be 30 and following a two-level reduction pursuant to § 5C1.2, the adjusted offense level was calculated to be 28. [D.E. #189 PSR ¶67]. - Following the three-level adjustment for acceptance of responsibility, the total offense level was 25. Petitioner did not make any written objections to the PSR. At sentencing on August 11, 2015, counsel for petitioner did not make an objection to what petitioner alleges was a lack of two-level reduction under § 5C1.2 as this two-level reduction was already accounted for in the PSR. [D.E. #189 PSR ¶67]. This court adopted the calculation of the advisory guideline range from the PSR, 57 to 71 months, and sentenced petitioner to the bottom of the range, a term of imprisonment of 57 months.

         Petitioner did not file an appeal. Petitioner timely filed this motion to vacate on June 17, 2016.

         COURT'S DISCUSSION

         I. Ineffective Assistance of Counsel ("IAC") Standard [2]

         To prove ineffective assistance of counsel, petitioner must satisfy the dual requirements of Strickland v. Washington, 466 U.S. 668, 687 (1984). First, petitioner must show that counsel's performance was deficient in that it fell below the standard of reasonably effective assistance. Id. at 687-91. In making this determination, there is a strong presumption that counsel's conduct was within the wide range of reasonable professional assistance. Id. at 689. The Strickland court reasoned "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. Second, petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

         A. Retroactively Applicable Amended USSG § 3B1.2

         In an Addendum to her Motion to Vacate, [D.E. #291], petitioner attempts to challenge the establishment of her advisory guideline range pursuant to a retroactively applicable amended §3B1.2 providing a two-level reduction for a defendant who played a minor role in the offense.[3] Such claims are barred by the appeal waiver contained in petitioner's plea agreement, in which she agreed to waive her right to appeal her sentence including any issues relating to the establishment of the advisory guidelines range, with the exception of a sentence imposed in excess of the established guideline range. See Plea Agreement [D.E. #133 at 1].

         Such waivers are valid and enforceable when they are knowingly and voluntarily made. See United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). Sworn testimony offered by a criminal defendant in open court affirming her plea agreement "[carries] a strong presumption of verity." See Id. (quoting United States v. White, 366 F.3d 291, 295 (4th Cir. 2004)). At her arraignment, the court found petitioner's plea was freely and voluntarily entered. [D.E. #126 at 1]. Petitioner's sentence was not in excess of the applicable advisory guideline range. Therefore, this claim is dismissed as waived.

         B. IAC at Sentencing

         Petitioner alleges counsel rendered ineffective assistance by failing to object at sentencing to the lack of application of the "Safety Valve, " although petitioner qualified under the five criteria outlined in USSG § 5C1.2 pursuant to USSG § 2D1.1(b) (17). The court notes petitioner's claim lacks merit because the "Safety Valve" reduction of two base offense levels pursuant to USSG § 5C1.2 was already applied in the PSR. [D.E. #189 at 15 ¶67]. Finding petitioner was not deprived of the two-level Safety Valve reduction as it was already included in the ...


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