United States District Court, E.D. North Carolina, Southern Division
JAMlESC.DEVER III Chief United States District Judge
9, 2016, Willis Sarvis ("Sarvis") moved under 28
U.S.C. § 2255 to vacate, set aside, or correct his
sentence [D.E. 134]. On October 11, 2016, in response to a
court order directing him to do so, Sarvis amended his
section 2255 motion [D.E. 138]. On October 17, 2016, Sarvis
moved for appointment of counsel [D.E. 139]. On November 17,
2016, Sarvis filed a corrected section 2255 motion [D.E.
141]. On February 23, 2017, the government moved to dismiss
Sarvis's section 2255 motions [D.E. 146] and filed a
memorandum in support [D.E. 147]. On March 21, 2017, Sarvis
moved to amend his section 2255 motion [D.E. 152] and
responded in opposition to the government's motion to
dismiss [D.E. 153]. As explained below, the court grants
Sarvis's motion to amend, considers the new claims,
grants in part and denies in part the government's motion
to dismiss, dismisses Sarvis's section 2255 motions
except for his ineffective-assistance claim concerning trial
counsel's alleged advice concerning an alleged plea
offer, and denies Sarvis's motion for appointment of
14, 2011, Sarvis was indicted for distributing a quantity of
phencyclidine (count one), being a felon in possession of a
firearm (count two), and possession of a firearm in
furtherance of a drug trafficking crime (count three) [D.E.
1]. On February 21, 2012, Sarvis pleaded guilty to count two.
See [D.E. 25] 1-18. On January 16, 2013, a jury found Sarvis
guilty of counts one and three. See [D.E. 69, 73]. On
November 15, 2013, at Sarvis's sentencing hearing, the
court calculated Sarvis's total offense level to be 38,
his criminal history category to be VI, and his advisory
guideline range on counts one and two to be 360 months to
life and on count three to be 60 months consecutive to
whatever sentence was imposed on counts one and two. See
[D.E. 105]; Sentencing Tr. [D.E. 115] 6-19. After thoroughly
considering all relevant factors under 18 U.S.C. §
3553(a), the court sentenced Sarvis to 240 months'
imprisonment on count one, 120 months' consecutive
imprisonment on count two, and consecutive life imprisonment
on count three. See Sentencing Tr. at 25-36.
appealed. On February 4, 2015, the United States Court of
Appeals for the Fourth Circuit affirmed Sarvis's
conviction and sentence. See United States v.
Sarvis. 601 F.App'x 176, 178-81 (4th Cir. 2015) (per
9, 2016, Sarvis filed his section 2255 motion [D.E. 134]. In
his motion Sarvis makes four claims: (1) his life sentence on
count three violates his right to grand jury indictment under
the Fifth Amendment and his right to a jury trial under the
Sixth Amendment as discussed in Allevne v. United
States. 133 S.Ct. 2151 (2013), Apprendi v. New
Jersey. 530 U.S. 466 (2000), and United States v.
Jones. 526 U.S. 227 (1999); (2) his conviction on count
three is "illegal" because the grand jury charged
count three in the conjunctive; (3) he is legally innocent of
the crime charged in count three; and, (4) ineffective
assistance of counsel when presenting, explaining, and
advising Sarvis on the government's pre-trial plea offer.
See Id. On October 11, 2016, Sarvis amended his 2255
motion [D.E. 138]. In the amended motion, Sarvis again
alleges that his conviction on count three is
"illegal" because the grand jury charged him in
count three in the conjunctive. See [D.E.138] 3-5. On
November 17, 2016, Sarvis filed a corrected section 2255
motion with the same four claims. See [D.E. 141 ]. On October
17, 2016, Sarvis moved for appointment of counsel [D.E. 139].
February 23, 2017, the government moved to dismiss
Sarvis's section 2255 motions for failure to state a
claim upon which relief can be granted [D.E. 146]. The
government argues that Sarvis procedurally defaulted all
claims other than his ineffective assistance of counsel
claims and thatthe ineffective assistance claims fail to
state aclaim upon which relief can be granted. See [D.E. 147]
March 21, 2017, Sarvis moved to amend his section 2255
motion. See [D.E. 152]. Sarvis seeks to assert claims that he
received ineffective assistance of counsel because: (1) his
trial counsel was under federal investigation for mortgage
fraud and thereby had an incentive to act against
Sarvis's best interest; (2) trial counsel failed to
meaningfully research the law; (3) trial counsel failed to
meaningfully investigate the facts (including a possible
Miranda violation): (4) trial counsel failed to call
Sarvis's girlfriend as a witness; (5) trial counsel
failed to have an expert test the firearm mentioned in the
indictment; (6) trial counsel advised Sarvis not to testify;
(7) trial counsel gave poor advice during plea negotiations;
and (8) trial counsel failed to present a meaningful defense
at trial. See [D.E. 152-1] 2-29.
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 the legal and factual
sufficiency of a claim. See Ashcroft v. Iqbal. 556
U.S. 662, 677-78 (2009); Bell Atl. Corp. v. Twomblv.
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
Ericksonv. 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. Fradv. 456 U.S. 152,
166-68 n.15 (1982); United States v. Reckmever. 900
F.2d 257, at *4 (4th Cir. 1990) (unpublished table decision).
In considering a motion to dismiss, a court need not accept a
pleading'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.3dat302 (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 Ctv. 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.3d223, 225 (1st Cir.
Sarvis's claims that his life sentence on count three
violates his right to grand jury indictment under the Fifth
Amendment and his right to a jury trial under the Sixth
Amendment as discussed in Alleyne. Apprendi. and
Jones and that he is legally innocent of the crime
charged in count three, Sarvis failed to raise these claims
on direct appeal. Thus, the general rule of procedural
default bars Sarvis from presenting these claims 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, Sarvis has not plausibly alleged "actual
innocence" or "cause and prejudice" -
resulting from the alleged errors about which he now
complains. See Bouslev. 523 U.S. at 622-24;
Coleman v. Thompson. 501 U.S. 722, 753 (1991);
Fradv. 456 U.S. at 170; United States v.
Pettiford. 612 F.3d 270, 280-85 (4th Cir. 2010);
United States v. Mikalajunas. 186 F.3d 490, 493-95
(4th Cir. 1999). Accordingly, the claims fail.
Sarvis's claims that his conviction on count three is
"illegal" because the grand jury charged count
three in the conjunctive and that count three of the
indictment failed to charge a violation of 18 U.S.C. §
924(c)(1)(A), Sarvis raised these claims on direct appeal and
lost. See Sarvis. 601 F.App'x at 178-81. Sarvis
cannot use section 2255 to recharacterize and relitigate a
claim that he lost on direct appeal. See, e.g..
Frady. 456 U.S. at 164-65; United States v.
Dyess. 730 F.3d 354, 360 (4th Cir. 2013); United
States v. Roane. 378 F.3d 382, 396 & n.7 (4th Cir.
2004); Boeckenhaupt v. United States. 537 F.2d
1182.1183(4thCir. 1976) (per curiam). Thus, the claims fail.
Sarvis'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, Sarvis must show
that his 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.
court hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury."
Id. at 695. When analyzing an ineffectiveness claim,
a court may rule on its own familiarity with the case. See
Blackledge v. ...