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Stewart v. United States

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

July 17, 2017

GLEN ALLEN STEWART, JR., 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 (DE 151) and petitioner's motion to amend (DE 169). Also before the court is the government's motion to dismiss, in part, and stay, in part (DE 162). The issues raised are ripe for ruling. For the reasons that follow, this court denies petitioner's motion to vacate, denies petitioner's motion to amend, and grants, in part, and denies as moot, in part, the government's motion.

         BACKGROUND

         On May 13, 2014, petitioner was charged in a single-count indictment with being a convicted felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g) and 924. At his arraignment, held on August 12, 2014, petitioner pleaded not guilty. Following a three-day trial, petitioner was found guilty.

         On January 6, 2015, this court sentenced petitioner to 120 months imprisonment. Petitioner appealed this court's judgment. On October 13, 2015, the Fourth Circuit Court of Appeals affirmed. See United States v. Stewart, 628 F. App'x 179 (4th Cir. 2015). Petitioner filed a petition for certiorari with the Supreme Court, and it was denied on February 29, 2016. See Stewart v. United States, 136 S.Ct. 1227 (2016).

         On August 7, 2015, petitioner filed his first motion to vacate pursuant to 28 U.S.C. § 2255. The motion was voluntarily dismissed on April 26, 2016. On June 20, 2016, petitioner filed the instant § 2255 motion, alleging that his trial counsel provided ineffective assistance in the following respects: 1) waived his speedy trial rights; 2) stipulated to prior convictions; 3) failed to file a motion to quash; 4) failed to adequately consult; 5) was not adequately qualified; 6) failed to adequately cross-examine; 7) failed to object to jury instructions; and 8) failed to object to testimony. In his ninth claim, petitioner argues that the government engaged in prosecutorial misconduct. Petitioner contends in his tenth claim that U.S.S.G. § 2K2.1 is invalid following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). In his eleventh and final claim, petitioner alleges that his appellate counsel provided ineffective assistance by failing to address trial counsel's performance on direct appeal.

         On October 17, 2016, the government filed its motion to dismiss, in part, and stay, in part. The government argues that petitioner's Johnson claim should be stayed pending the Supreme Court's decision in Beckles v. United States, No. 15-8544. The government further argues that the remainder of petitioner's claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). On June 14, 2017, petitioner filed his motion to amend, in which he seeks to add a claim under Mathis v. United States, 136 S.Ct. 2243 (2016).

         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. Motion to Vacate

         a. Petitioner fails to state a claim of ineffective assistance of counsel.

         Petitioner has raised nine ineffective assistance of counsel claims. See Mot. Vacate Mem. (DE 151-1). 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 his counsel's 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 ineffective assistance of counsel claims in turn.

         i. Waived speedy trial rights

         In his first claim, petitioner alleges that his trial counsel provided ineffective assistance by waiving his speedy trial rights, without his consent, on two occasions. Mot. Vacate Mem. (DE 151-1) at 3-4. Petitioner concludes that his trial counsel's actions prejudiced him because any amount of jail time has Sixth Amendment significance and is prejudicial under Strickland. Id. at 3.

         Under the provisions of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, a defendant must be brought to trial within 70 days from the filing of the indictment or from the date of his initial appearance, whichever is later. 18 U.S.C. § 3161(c)(1). Section 3161(h) sets forth periods of time that should be excluded “in computing the time within which the trial of any such offense must commence.” Of particular relevance in this case is § 3161(h)(1)(D), which excludes “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.”

         Petitioner's trial counsel waived his speedy trial rights at an August 15, 2014, telephonic scheduling conference. At the time of the telephonic scheduling conference, petitioner's trial was set to commence on September 22, 2014. It was reasonable for petitioner's trial counsel to have waived speedy trial concerns at that time because the government had a pending motion. See (DE 36). Also, prior to being moved, the trial date was set for only about five weeks after petitioner's arraignment. The trial date was continued again on September 3, 2014, and at that time, there were several pending pretrial motions. See (DE 36, 41, 45, 47).

         This claim fails under both prongs of the Strickland standard. It fails under the performance prong because the record belies petitioner's claim that his trial counsel's waivers constituted deficient performance. Petitioner's claim fails under the prejudice prong because he has failed to allege any prejudice. Rather, petitioner merely makes the bare assertion that jail time has Sixth Amendment significance and is prejudicial. See Mot. Vacate Mem. (DE 151-1) at 3. Accordingly, petitioner's first claim must be dismissed.

         ii. Stipulated to prior convictions

         Petitioner alleges in his second claim that his trial counsel provided ineffective assistance by stipulating to prior convictions for being a felon in possession of a firearm. Mot. Vacate Mem. (DE 151-1) at 5-7. Petitioner concludes that he was prejudiced because his trial counsel's actions led to a guilty verdict. Id. at 6.

         This claim fails under both prongs of the Strickland standard. It fails under the performance prong because trial counsel's strategic decision to stipulate to the prior convictions was not unreasonable. See Strickland, 466 U.S. at 691 (noting that assessment of performance requires a court to apply a “heavy measure of deference to counsel's judgments”). By stipulating to the existence of the prior convictions, trial counsel avoided further presentation or discussion of the convictions before the jury.

         Petitioner's claim fails under the prejudice prong because petitioner has failed to demonstrate a reasonable probability that his trial counsel's failure to enter into this stipulation would have led to a different outcome at trial, particularly given the strong evidence in this case. The evidence was described by the Fourth Circuit as follows:

Taken in the light most favorable to the prosecution, we find ample record support for the jury's finding that Stewart constructively possessed the firearm and ammunition found in the vehicle on the night in question. Specifically, both of the police officers involved in the traffic stop underlying this prosecution testified to seeing a gun, which was loaded protruding from the vehicle's center console. Stewart was driving the vehicle, which he had borrowed from his aunt. At a minimum, then, Stewart had dominion and control over the vehicle in which the loaded firearm was located, which is enough to support a conviction under a constructive possession theory.
But the Government's evidence went further. The police officer who first observed the firearm offered clear and unequivocal testimony describing the close proximity between Stewart and the gun- explaining that the firearm was within inches of Stewart's body-and that Stewart glanced toward the gun and began to move his hand toward it after the officer directed Stewart to raise his hands. This evidence also establishes ...

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