United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
MATTER is before the Court on Petitioner's Motion to
Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255, (Doc. No. 1). Also pending before the Court are the
following motions: (1) Petitioner's Motion for Access to
Sealed Court Records (Doc. No. 35), (2) Petitioner's
Motion for Bond (Doc. No. 42); (3) Petitioner's Motion
for Status Report Hearing (Doc. No. 68); (4) Petitioner's
Motion for Leave to Expand the Record Pursuant to Rule 7 of
the Rules Governing Section 2255 (Doc. No. 71); (5)
Petitioner's Motion for Leave to Supplement Previously
Filed 2255 (Doc. No. 73); (6) Petitioner's Motion re:
Motion to Vacate/Set Aside/Correct Sentence (Doc. No. 74);
(7) Petitioner's Motion to Appoint Counsel (Doc. No. 78);
(8) Motion to Withdraw as Attorney by Federal Defender (Doc.
No. 80); (9) Petitioner's Motion to Withdraw Counsel and
Proceed Pro Se (Doc. No. 81); (10) Petitioner's
Supplement Newly Amended Supplement to Motion to Vacate (Doc.
No. 82); (11) Petitioner's Motion for Status Report or
Hearing re Motion to Vacate/Set Aside/Correct Sentence (Doc.
No. 85); and Petitioner's Motion for Leave To Supplement
and/or Amend (Doc. No. 89).
Petitioner is shot during a drug deal while providing
protection with a firearm.
March 18, 2011, Charlotte-Mecklenburg Police Department
officers responded to a shooting in a Wal-Mart parking lot in
Charlotte, North Carolina. (Crim. Case No. 3:11-cr-336-RJC-1,
Doc. No. 73 at 10: 1/7/13 Sentencing Hrg. Tr.; Doc. No. 46 at
¶ 4: PSR). The responding officers found Petitioner
lying on the ground, shot in the neck, with a loaded
Hi-point, 9-mm, semi-automatic pistol lying next to his body.
(Id., Doc. No. 73 at 5-6; Doc. No. 46 at ¶ 4).
In investigating the shooting, officers interviewed Barry
Adams, who was also at the Wal-Mart parking lot that day.
(Id., Doc. No. 73 at 6). Adams reported that he was
at the Wal-Mart to sell two ounces of cocaine, which he had
received from Petitioner, and that Petitioner was there to
provide protection for the deal because Adams was not
“comfortable” with the prospective buyer.
(Id. at 10). During the deal, as Adams had feared,
the buyer pulled a gun and tried to rob Adams of the crack
cocaine. (Id.). An exchange of gunfire ensued, with
Petitioner firing at the person attempting to rob Adams.
law-enforcement officers arrived at the scene, Petitioner
acknowledged that he had shot back at the individual who
robbed Adams, stating that he shot at him about seven times.
(Id.). Adams reported to investigating officers that
when he leaned down to talk to Petitioner after he had been
shot, Petitioner told him that he had crack rocks in his
pocket and asked Adams to “[g]et them out” before
the police arrived. (Id. at 11). Adams did so,
hiding them in an area of the parking lot. (Id.).
Authorities later located two grams of crack in the parking
On the advice of counsel, Petitioner pleads guilty to having
been a felon-in-possession.
federal grand jury charged Petitioner with a single count of
possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g). (Crim. Case No. 3:11-cr-336-RJC-1,
Doc. No. 8: Indictment). Petitioner eventually retained
private counsel, Melissa Owen, who met with Petitioner twice
for several hours so Petitioner could review the discovery
against him and who ultimately advised Petitioner to plead
guilty. See (Civ. Doc. No. 1-2 at 53: 6/12/12 Letter
from Melissa Owen to Pet., attached as Ex. B to Pet. Mot. to
Vacate (Ex. B)).
Petitioner was indicted, he had prior, state-court felony
convictions for assault with a deadly weapon causing serious
injury, possession with intent to sell or deliver cocaine,
and conspiracy to traffic in cocaine, as well as a prior
conviction in this Court for conspiracy to possess with
intent to distribute crack cocaine. (Crim. Case No.
3:11-cr-336-RJC-1, Doc. No. 46 at pp. 7-9). In later
explaining her decision to advise Petitioner to plead guilty
to the felon-in-possession offense, counsel Owen noted that
the discovery revealed that witnesses stated that Petitioner
did, in fact, possess the firearm at issue and that
Petitioner had provided two statements to the police that he
possessed the firearm. (Civ. Doc. No. 1-2 at 53). Owen also
explained that some witnesses reported that a drug
transaction had taken place before the shooting and that
Petitioner had been there to provide security for the
transaction. (Id.). Owen explained further that she
had been informed that Petitioner had “show[n] up in a
number of calls setting up drug transactions in a collateral
federal drug prosecution” and that the Assistant United
States Attorney advised Owen that if Petitioner did not plead
guilty to the felon-in-possession offense, she would seek a
superseding indictment charging Petitioner with participating
in a drug-trafficking conspiracy and possessing a firearm in
furtherance of a drug-trafficking offense, in violation of 18
U.S.C. § 924(c). (Id.). Related to this
possibility, Owen noted that if Petitioner were charged with
a drug-trafficking offense, his criminal history would
qualify him as a career offender, subjecting him “to
far higher penalties” than faced on the possession
charge alone. (Id.).
entered a straight-up plea of guilty to the
felon-in-possession offense, and Magistrate Judge David Cayer
conducted a colloquy in accordance with Federal Rule of
Criminal Procedure 11. (Id., Doc. No. 72: Rule 11
Tr.). During the colloquy, Petitioner reported to the Court
that he was not under the influence of alcohol or drugs and
that his mind was clear. (Id. at 4). Petitioner also
affirmed that he understood the charge to which he was
pleading guilty, as well as the maximum penalty he faced, and
that he was, in fact, guilty of the firearm offense.
(Id. at 4-5, 7). In response to questions about
threats or intimidation, Petitioner affirmed that no one had
“threatened, intimidated or forced” him into
pleading guilty, nor had anyone made him “any promises
or leniency or a light sentence” to induce him to plead
guilty. (Id. at 8). Finally, Petitioner affirmed
that he had had enough time to discuss any possible defenses
to the charge with trial counsel and that he was
“satisfied with Ms. Owen.” (Id.).
After Petitioner questions the circumstances of his guilty
plea, this Court suspends the first sentencing
probation officer prepared a PSR in advance of the sentencing
hearing that calculated a total offense level of 25,
including a four-level enhancement pursuant to U.S.S.G.
§ 2K2.1(b)(6)(B) for possessing the firearm during the
course of a drug-trafficking transaction. (Id., Doc.
No. 28 at 4-5: Draft PSR). Although the probation officer
initially believed that Petitioner qualified as an armed
career criminal, subjecting him to a statutory mandatory
minimum of 180 months in prison, see 18 U.S.C. § 924(e),
Owen spoke with the probation officer after Petitioner's
pre-sentence interview and explained her argument that
Petitioner did not qualify as an armed career criminal.
See (Civ. Doc. No. 1-2 at 53-54). The probation
officer ultimately agreed with trial counsel, and the final
PSR did not include this enhancement. See (Crim.
Case No. 3:11-cr-336-RJC-1; Doc. No. 46 at 4-5).
Court, the Honorable Max O. Cogburn, Jr., presiding, convened
the first sentencing hearing on October 26,
2012. At the beginning of the hearing, this
Court questioned Petitioner about his answers during the Rule
11 colloquy to confirm that Petitioner still wanted to plead
guilty. (Id., Doc. No. 70 at 2-3: 10/26/12
Sentencing Hrg. Tr.). In response, Petitioner questioned
whether he had been “threat[ened] or
intimidate[ed]” into entering his first plea based on
the Government's advisement to his attorney that they
would supersede the indictment to add additional charges if
Petitioner did not plead guilty. (Id. at 3).
Petitioner also challenged whether he had received all of the
discovery in his case and complained that, although he was
the victim of a gunshot wound, he was the only one charged
arising out of the events at the Wal-Mart parking lot.
(Id. at 4-5).
Petitioner questioned whether he had been able to review all
of the discovery, he never suggested that he was not guilty,
stating, “I ain't saying I'm not guilty.”
(Id. at 5). After hearing from Petitioner, this
Court decided to suspend the sentencing hearing to enable
Petitioner “to view whatever else there is in the
[discovery] file that he [had] not viewed.”
(Id. at 8). The Court then explained to Petitioner
that he would have to decide whether he wanted to move to
withdraw his guilty plea. (Id.).
suspending the hearing, the Court explained that the
Government had not “improper[ly]” threatened or
intimidated Petitioner by agreeing to forego additional
charges in exchange for his guilty plea. (Id. at 9).
The Court explained that such a negotiation was
“pressure but . . . proper pressure of the plea
bargaining process.” (Id.). In response,
Petitioner insisted that he did not want to go to trial but
that he did want a hearing into the veracity of the witnesses
against him. (Id.). After further discussion,
Petitioner stated that he understood that he would not get
that hearing and that he would “take [his] plea.”
(Id. at 15). This Court declined to allow the plea
at that time, instructing counsel Owen to make all discovery
available to Petitioner. (Id. at 18). Counsel Owen
agreed, but also noted that Petitioner had “had
multiple opportunities to review the discovery . . [a]ll of
the paper documents . . . .” (Id.). Owen
explained that although there were discs of videotaped
interviews that Petitioner had not been able to review
because of compatibility issues between the discs and the
software at trial counsel's law office, Petitioner was
able to review transcripts of each of those recordings.
(Id. at 19). This Court instructed counsel to figure
out a way to enable Petitioner to view the videos in full.
(Id. at 20-21). Although Petitioner continued to
insist that he did not want to withdraw his plea and that he
could raise the issues he sought to raise in a Section 2255
motion or “later on, ” this Court advised him
that he could make that decision after he viewed the videos.
(Id. at 11, 21, 23-24).
At the conclusion of the second sentencing hearing, this
Court sentences Petitioner to a downward-variance sentence of
100 months in prison.
Court convened a second sentencing hearing on January 7,
2013. At the beginning of the hearing, Petitioner affirmed
that the answers that he gave during his Rule 11 colloquy
were correct and that he was, in fact, guilty of the §
922(g) offense. (Crim. Case No. 3:11-cr-336-RJC-1, Doc. No.
73 at 3). Petitioner stipulated to the facts set forth in the
offense conduct section of the PSR that met the elements of
the offense, including that he possessed a gun on the day in
question. (Id. at 4-7). He refused to stipulate,
however, to the facts that purported to establish that
“this was a drug deal gone bad.” (Id. at
response to Petitioner's objection to the four-level
enhancement based on his having possessed the firearm in
connection with a drug-trafficking offense, the Government
called ATF Special Agent Robert Bryson to testify to the
facts establishing that this offense was in the course of a
drug-trafficking transaction. See (Id. at
9). Agent Bryson recounted Adams' interview in which he
relayed that he was there to sell drugs, that he brought
along Petitioner to serve as protection in case the deal went
badly, that the drug buyer attempted to rob him, and that
this robbery resulted in an exchange of gunfire between
Petitioner and the would-be robbers. (Id. at 10-11).
Agent Bryson also relayed Petitioner's statements to
officers that he (Petitioner) shot at the robbers
approximately seven times. (Id. at 10).
counsel cross-examined Agent Bryson to refute the “drug
deal gone bad” scenario. Petitioner's counsel
established that Agent Bryson had not personally interviewed
Petitioner or Adams and instead was relying on other
officers' reports. (Id. at 11-12). Counsel also
established that the crux of the evidence came solely from
Adams' statement, though Agent Bryson testified that he
had also considered what was found at the crime scene and
other witnesses' statements. (Id. at 12-13).
Counsel elicited that Petitioner did not mention anything
about drugs in his interview with law enforcement officials
and that several other witnesses, including Adams'
girlfriend, did not tell investigators that this was a drug
robbery. (Id. at 13-15, 17-18). Counsel further
established that Adams did not tell the first CMPD detective
to interview him that the robbery was a drug robbery, that
for much of his first interview he insisted that this was
merely a robbery of $60, and that he changed his story after
a two-hour break in the interview. (Id. at 16,
18-20). When asked about the change in Adams' story after
a two-hour break and whether any promises had been made to
Adams that were not recorded, Agent Bryson testified that
ordinarily the recording is not stopped, even during breaks.
(Id. at 19). Although Agent Bryson did not know
“for sure” whether the recording had been
continued during Adams' interview, he testified that
continuing the recording was “common practice.”
(Id.). Agent Bryson also acknowledged on
cross-examination that Petitioner's teenage daughter was
interviewed and repeatedly denied that the robbery had
anything to do with drugs. (Id. at 20).
counsel was cross-examining Agent Bryson about
Petitioner's teenage daughter, counsel for the Government
requested a moment to speak with Petitioner's counsel.
(Id.). The attorneys then had an off-the-record
discussion with this Court and, at some point during this
conference, the Court relayed that if it assessed the
four-level enhancement under § 2K2.1(b)(6)(B) it would
“likely” sentence Petitioner at the low-end of
the advisory range but, if it did not apply the enhancement,
it would sentence Petitioner at the high end of the range.
(Id. at 30, 40-41). At the conclusion of this
discussion, Petitioner withdrew his objection and requested
to move forward to sentencing. (Id. at 21). At some
point before Petitioner withdrew his objection, he was
informed that if he did not withdraw his objection, the
Government would seek a superseding indictment. (Id.
arguing for a specific sentence, the Government noted that it
would not move for the third-level reduction for acceptance
of responsibility, pursuant to U.S.S.G. § 3E1.1(b),
given Petitioner's litigious posture between entry of his
guilty plea and the sentencing hearing, which included more
than 15 filed motions and the fact that he repeatedly
declined to accept responsibility for his criminal conduct.
(Id. at 21-22). Without the third-level reduction,
Petitioner's total offense level was 26, with a criminal
history category V, yielding an advisory range of 110 to 120
months. (Id. at 21).
response, Petitioner's counsel requested a
downward-variance sentence of 100 months. (Id. at
22). Counsel acknowledged Petitioner's litigiousness but
argued that, notwithstanding all of his court filings, he
never denied that he committed the offense. (Id.).
In asking for a lower sentence, counsel recounted the
“suffer[ing]” Petitioner had endured as a result
of his gunshot wound to the neck and contended that
“the justice system has failed him” because no
one was prosecuted for the shooting. (Id. at 22-23).
This line of argument prompted this Court to observe that
“the evidence [was] pretty clear he got shot because he
showed up at a drug deal with a gun, ” that Petitioner
was “hang[ing] out with gun-toting drug dealing crooks,
” and that Petitioner was shot because he “was a
criminal involved with guns and drugs.” (Id.
at 23). The Court acknowledged that Petitioner did not
“have to agree to every nuance of the crime” but
stated that there was “plenty of evidence to support
the Government's version [that this was a drug deal gone
bad].” (Id. at 24). The Court emphasized that
“the justice system is treating [Petitioner] very very
fairly.” (Id. at 25).
then spoke on his own behalf, again complaining that he was
the only one charged as a result of the shooting incident.
(Id. at 26). Petitioner requested a sentence below
100 months and asserted that when he confessed, he was under
medication and had been antagonized by law enforcement.
(Id. at 27-28).
Court sentenced Petitioner to 100 months of imprisonment.
(Id. at 39). The Court found that Petitioner had
accepted responsibility for the offense, even though
Petitioner did not agree “chapter and verse [with] the
government's version” of the offense. (Id.
at 35). Thus, the Court varied one level “to reach the
level the Court believed this should have been sentenced at,
and is going to be sentenced at, [a range] ¶ 100 to 125
months.” (Id. at 36). The Court noted its
reluctance to vary from the Guidelines, but explained that it
“ha[d] to sentence where [the court] believe[d] the
sentence ought to go.” (Id.). The Court also
noted that its downward variance avoided unwarranted
sentencing disparities among defendants who fully accept
responsibility for the crimes with which they are charged.
(Id.). Even after imposing the sentence, the Court
continued to explain its conclusion that 100 months was the
appropriate sentence in this case, regardless of the
guideline enhancements. (See id. at 41; see also
id. at 43 (“I sentenced you to the sentence that I
think is appropriate in this case under all these
appealed, arguing that trial counsel provided ineffective
assistance of counsel in withdrawing Petitioner's
objection to the four-level enhancement. The Fourth Circuit
affirmed this Court's judgment, holding that Petitioner
had “failed to demonstrate that ineffective assistance
of counsel conclusively appears on the record.”
United States v. Mosley, 552 F. App'x 267, 268
(4th Cir. 2014).
now seeks to have his conviction and sentence vacated and has
submitted an affidavit in support of the numerous claims
raised in his motion. The Government has filed a response to
Petitioner's motion to vacate, addressing each of his
claims. (Civ. Doc. No. 57). Moreover, since filing his
original motion to vacate, Petitioner has filed numerous
motions to amend and/or supplement, which the Court addresses
below. Petitioner has also filed numerous, other pending
motions in this matter, and the Court addresses each of them
separately as well.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the arguments presented by Petitioner can be
resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).