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Baker v. United States

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

July 19, 2017



          JAMES C. DEVER III Chief United States District Judge.

         On December 28, 2015, Beverly Allen Baker ("Baker") moved under 28 U.S.C. § 2255 to vacate, set aside, or correct her 360-month sentence [D.E. 209]. On January 19, 2016, Baker filed a memorandum in support of her motion [D.E. 212] and a motion to amend [D.E. 211 ]. On February 29, 2016, Baker filed a corrected motion to amend [D.E. 214]. On September 14, 2016, the government moved to dismiss Baker's section 2255 motion for failure to state a claim [D.E. 222] and filed a memorandum in support [D.E. 223]. On October 4, 2016, Baker responded in opposition [D.E. 225]. As explained below, the court grants Baker's motion to amend, grants the government's motion to dismiss, and dismisses Baker's section 2255 motion.


         On June 27, 2012, Baker "was convicted by a jury of conspiracy to distribute 280 grams or more of cocaine base (crack) in violation of 21 U.S.C. § 846 (2006), and nine counts of crack distribution, 21 U.S.C. § 841 (2006)." United States v. Baker, (Baker P. 539 F.App'x 299, 301 (4th Cir. 2013) (per curiam) (unpublished); see [D.E. 106]. On September 3, 2014, this court sentenced Baker to concurrent sentences of 360 months' imprisonment on the conspiracy count and 240 months' imprisonment on each of the distribution counts. [D.E. 189]. The Fourth Circuit affirmed Baker's conviction and sentence. See Baker I, 539 F.App'x at 301-06; United States v. Baker (Baker II), 601 F.App'x 231, 232-33 (4th Cir. 2015) (per curiam) (unpublished).

         On December 28, 2015, Baker filed her section 2255 motion [D.E. 209]. In her motion, Baker makes more than a dozen claims attacking the legality of her indictment, trial, sentencing, and legal representation. Generally, these claims include: (1) improper constructive amendment of her indictment; (2) failure to instruct the jury on the statute of limitations; (3) failure to give the jury "a specific unanimity instruction"; (4) failure to give "an informant instruction"; (5) providing a verdict form that did not "include essential elements of' knowingly' or 'intentionally'"; (6) actual innocence; (7) several instances of ineffective assistance of counsel; (8) violations of Napue v. Illinois, 360 U.S. 264 (1959), Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972); (9) deprivation of Baker's Sixth Amendment right to a jury trial; (10) erroneous grouping of counts for sentencing purposes; and (11) impermissible joinder in violation of Rule 8(b) of the Federal Rules of Criminal Procedure.


         The government may challenge the legal sufficiency of a section 2255 petition through a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Rule 12, Rules Governing Section 2255 Proceedings; United States v. Frady, 456 U.S. 152, 166-68 n.15 (1982); United States v. Reckmeyer, 900 F.2d 257, at *4 (4th Cir. 1990) (unpublished table decision). A motion to dismiss under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted" tests the claims' legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Corp. v. Twombly, 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. 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 petition'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. The court, however, "accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency" of the petition. Nemet Chevrolet Ltd. v. Inc., 591 F.3d 250, 255 (4th Cir. 2009). Construing the facts in this manner, the petition must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (quotation omitted).

         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 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. 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).


         As for Baker's claims that the court constructively amended her indictment, improperly failed to give a statute of limitations instruction, a specific unanimity instruction, and an informant instruction, used a defective verdict form, violated her right to a jury trial, improperly permitted joinder under Rule 8(b), and improperly tolerated Brady and Giglio violations, Baker failed to raise these claims on direct appeal. Thus, the general rule of procedural default bars Baker from presenting such 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. Furit, 703 F.3d 248, 253 (4th Cir. 2012); United States v. Sanders, 247 F.3d 139, 144 (4th Cir. 2001). Furthermore, Baker has not plausibly alleged "actual innocence" or "cause and prejudice" resulting from these alleged errors. See Bousley, 523 U.S. at 622-24; United States v. Frady, 456 U.S. 152, 170 (1982); United States v. Pettiford, 612 F.3d 270, 280-85 (4th Cir. 2010); United States v. Mikalajnnas, 186 F.3d 490, 493-95 (4th Cir. 1999). Accordingly, these claims fail.

         As for Baker's claims concerning her sentence that she raised and lost on direct appeal, Baker cannot use section 2255 to recharacterize and relitigate claims that she lost on direct appeal. See, e.g., Frady, 456 U.S. at 164-65; Dyess, 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, those claims fail.


         Alternatively, Baker's claims fail on the merits. First, Baker claims that the jury convicted her based on evidence that she engaged in multiple conspiracies but that her indictment alleged only a single conspiracy, resulting in a constructive amendment of her indictment. See [D.E. 212] 2. A "constructive amendment" of an indictment occurs "[w]hen the government, through its presentation of evidence or its argument, or the district court, through its instructions to the jury, or both, broadens the bases for conviction beyond those charged in the indictment." United States v. Ashley, 606 F.3d 135, 141 (4th Cir. 2010) (quotation omitted). "A constructive amendment is a fatal variance because the indictment is altered to change the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment." United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999) (quotation omitted). "In a conspiracy prosecution, a defendant may establish the existence of a material variance by showing that the indictment alleged a single conspiracy but that the government's proof at trial established the existence of multiple, separate conspiracies." United States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994). A single conspiracy can exist in cases, such as this, involving multiple transactions where there is an overlap of key actors, methods, and goals, indicating one overall general business venture extending over a long period of time. See United States v. Strickland, 245 F.3d 368, 385 (4th Cir. 2001); United States v. Tnhnsnn, 54 F.3d 1150, 1154 (4th Cir.1995); United States v. Barsanti, 943 F.2d 428, 439 (4th Cir. 1991); United States v. Leavis, 853 F.2d 215.218 (4th Cir. 1988) A variance in this context occurs only when the evidence at trial demonstrates that a defendant engaged in "separate conspiracies unrelated to the overall conspiracy charged in the indictment." Kennedy, 32 F.3d at 884 (quotation omitted).

         There was no variance between the single conspiracy charged in the indictment and the evidence presented at trial. The evidence supported the existence of one large conspiracy to distribute and possess with intent to distribute cocaine base, precisely what the superseding indictment alleged. See[D.E.39] 1. The evidence at trial demonstrated that Baker led a large crack-distribution conspiracy featuring overlapping associates, methods, and goals. See [D.E. 151] 10-12; [D.E. 113] 105-08, 111-12, 157, 163, 177, 231-32. The government proved that the charged conspiracy embodied interrelated agreements to deal drugs in furtherance of a common business venture operating over a roughly eight-year period. See [D.E. 151] 10-12, 15-20; [D.E. 113] 157, 159, 165, 177, 179. The government argued in closing that Baker led a single conspiracy: "So the defendant has been engaged in a successful business of selling crack cocaine to various members affiliated with that business who are connected by agreements and understanding. That is the evidence in this case." [D.E. 151] 12. Baker's vague, threadbare references to ...

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