United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge.
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.
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299, 301 (4th Cir. 2013) (per curiam) (unpublished); see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(4th Cir. 2015) (per curiam) (unpublished).
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.
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. Consumeraffairs.com. 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
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).
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.
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.
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
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 ...