United States District Court, E.D. North Carolina, Western Division
C. DEVER III, Chief United States District Judge
6, 2016, Elizabeth Marrero ("Marrero") moved under
28 U.S.C. § 2255 to vacate, set aside, or correct her
132-month sentence [D.E. 95]. On November 4, 2016, Marrero
filed a motion for a sentence reduction under 18 U.S.C.
§ 3582 and Amendment 794 [D.E. 100]. On December 5,
2016, the government moved to dismiss Marrero's section
2255 motion [D.E. 104] and filed a memorandum in support
[D.E. 105]. On December 12, 2016, Marrero filed a
supplemental section 2255 motion [D.E. 107]. On December 27,
2016, Marrero filed a motion to consolidate her
post-sentencing motions [D.E. 108]. As explained below, the
court grants the government's motion to dismiss,
dismisses Marrero's section 2255 motions, and denies
Marrero's section 3582 motion.
November 10, 2014, pursuant to a plea agreement, Marrero
pleaded guilty to conspiracy to distribute and possess with
intent to distribute 5 kilograms or more of cocaine and a
quantity of heroin (count one) and to possession of a firearm
in furtherance of a drug-trafficking crime and aiding and
abetting (count four). See [D.E. 38, 65, 114]. On June 25,
2015, at Marrero's sentencing hearing, the court
calculated Marrero's total offense level to be 29, her
criminal history category to be I, and her advisory guideline
range to be 120 months' imprisonment on count one and 60
months' consecutive imprisonment on count four. See
Sentencing Tr. [D.E. 115] at 5-6. After granting the
government's motion under U.S.S.G. § 5K1.1 and
18U.S.C. § 3553(e), and considering all relevant factors
under 18 U.S.C. § 3553(a), the court sentenced Marrero
to 120 months' imprisonment on count one and 12
months' consecutive imprisonment on count four. See
Id. at 6-7, 13-18. Pursuant to the plea agreement,
the court dismissed counts two and three. See Id. at
16. Marrero did not appeal.
6, 2016, Marrero filed her section 2255 motion [D.E. 95]. On
December 12, 2016, Marrero filed an amended section 2255
motion [D.E. 107]. In her motion and amended motion, Marrero
makes three claims: (1) ineffective assistance of counsel
because defense counsel failed to argue that count four was
invalid due to Marrero's firearm "being registered
and purchased long before date of offense"; (2) the
court improperly failed to give Marrero acceptance of
responsibility at sentencing; and, (3) ineffective assistance
of counsel during sentencing due to the flat fee that counsel
who represented Marrero in state court charged Marrero, which
created a conflict of interest. See [D.E. 95] 4-7; [D.E. 107]
4; [D.E. 107-1] 6-9.
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests a claim's 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), aff'd,
566 U.S. 30 (2012); Giarratano v. Johnson, 521
F.3d298, 302 (4th Cir. 2008); accord Erickson v.
Pardus. 551 U.S. 89, 93-94 (2007) (per curiam). The
government may challenge the legal sufficiency of a section
2255 petition through a motion to dismiss under Rule
12(b)(6). 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).
In considering a motion to dismiss, a court need not accept a
complaint'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. Moreover, 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).
Marrero's claims that the court improperly failed to give
Marrero acceptance of responsibility at sentencing,
Marrero's plea agreement contains an appellate waiver.
See [D.E. 38] ¶ 2(c). In the waiver Marrero agreed
To waive knowingly and expressly all rights, conferred by 18
U.S.C. § 3742, to appeal the conviction and whatever
sentence is imposed on any ground, including any issues that
relate to the establishment of the advisory Guideline range,
reserving only the right to appeal from a sentence in excess
of the applicable advisory Guideline range that is
established at sentencing, and further 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
not known to the Defendant at the time of the Defendant's
guilty plea. The foregoing appeal waiver does not constitute
or trigger a waiver by the United States of any of its rights
to appeal provided by law.
Id. In light of Marrero's Rule 11 proceeding,
the appellate waiver is enforceable. See United
States v. Copeland, 707 F.3d 522, 528-30 (4th
Cir. 2013); United States v. Davis. 689 F.3d 349,
354-55 (4th Cir. 2012) (per curiam); United States v.
Blick. 408 F.3d 162, 168 (4th Cir. 2005). Marrero's
claim concerning acceptance of responsibility falls within
the appellate waiver. Thus, the waiver bars the claim.
Marrero failed to raise this claim on direct appeal. Thus,
the general rule of procedural default bars Marrero from
presenting this claim under section 2255. See,
e.g., Massaro v. United States, 538 U.S.
500, 504 (2003); Bouslev v. United States, 523 U.S.
614, 621 (1998); United States v. Fugit, 703 F.3d
248, 253 (4th Cir. 2012); United States v. Sanders,
247 F.3d 139, 144 (4th Cir. 2001). Furthermore, Marrero has
not plausibly alleged "actual innocence" or
"cause and prejudice" resulting from the alleged
error about which she now complains. See Bousle v.
523 U.S. at 622-24; Coleman v. Thompson, 501 U.S.
722, 753 (1991); 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.
Mikalaiunas, 186 F.3d 490, 492-95 (4th Cir. 1999).
Accordingly, the claim fails.
Marrero cannot use section 2255 to attack retroactively her
advisory guideline range. See, e.g., United States v.
Foote, 784 F.3d 931, 935-36 (4th Cir. 2015); United
States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999);
see also Whiteside v. United States, 775 F.3d 180,
183-87 (4th Cir. 2014) (en banc); Mikalajunas, 186
F.3d at 495-96. Thus, the claim fails.
Marrero did receive acceptance of responsibility at
sentencing. See PSR [D.E. 47] ¶¶ 45-46; [D.E.
66] 1; Sentencing Tr. at 5-6. Thus, the claim fails.
Marrero's ineffective-assistance claims, "[t]he
Sixth Amendment entitles criminal defendants to the effective
assistance of counsel-that is, representation that does not
fall below an objective standard of reasonableness in light
of prevailing professional norms." Bobby v. Van
Hook. 558 U.S. 4, 7 (2009) (per curiam) (quotations
omitted). The Sixth Amendment right to counsel extends to all
critical stages of a criminal proceeding, including plea
negotiations, trial, sentencing, and appeal. See,
e.g.. Missouri v. Frye, 566 U.S. 133, 140
(2012); Lafler v. Cooper, 566 U.S. 156, 164-65
(2012); Glover v. United States. 531 U.S. 198,
203-04 (2001). "[S]entencing is a critical stage of
trial at which a defendant is entitled to effective
assistance of counsel, and a sentence imposed without
effective assistance must be vacated and reimposed to permit
facts in mitigation of punishment to be fully and freely
developed." United States v. Breckenridge, 93
F.3d 132, 135 (4th Cir. 1996); see Glover. 531 U.S.
at 203-04. To state a claim of ineffective assistance of
counsel in violation of the Sixth Amendment, Marrero must
show that her attorney's performance fell below an
objective standard of reasonableness and that he suffered
prejudice as a result. See Strickland v. Washington,
466 U.S. 668, 687-91 (1984).
determining whether counsel's representation was
objectively unreasonable, a court must be "highly
deferential" to counsel's performance and must
attempt to "eliminate the distorting effects of
hindsight." Strickland. 466 U.S. at 689.
Therefore, the "court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. A
party also must show that counsel's deficient performance
prejudiced the party. See id. at 691-96. A party
does so by showing that there is a "reasonable
probability" that, but for the deficiency, "the
result of the proceeding would have been different."
Id. at 694. When a party claims that her
counsel's deficient performance deprived her of a trial
by causing her to plead guilty, "the defendant can show
prejudice by demonstrating a reasonable ...