Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Snead v. United States

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

August 14, 2017



          Malcolm J. Howard Senior United States District Judge

         This matter is before the court on the government's motion to dismiss, [DE #155], petitioner's motion to vacate his sentence under 28 U.S.C. § 2255, [DE #151]. Petitioner filed a response, [DE #160], as well as the following: motion for leave to file a partial supplement to motion to vacate, [DE #163]; motion for leave to file a second supplemental petition to his motion to vacate, [DE #170]; addendum to the second supplemental petition, [DE #174]; motion for release from custody pending ruling on the motion to vacate, [DE #172]; motion to enforce judgment, [DE #173]; and motion seeking docketing sheet and status inquiry, [DE #175]. These matters are ripe for adjudication.


         On April 8, 2011, petitioner pled guilty pursuant to a written plea agreement following a change of plea hearing, to distribution of a quantity of cocaine on or about March 25, 2008, in violation of 21 U.S.C. §§ 841(a)(1) (Count Two).[1] [DE #108 ¶3a] . On November 8, 2011, the court sentenced petitioner to a term of imprisonment of 228 months. [DE #130]. Petitioner timely appealed his judgment, and the Fourth Circuit dismissed in part and affirmed in part on November 7, 2012. United States v. Snead, No. 11-5100, 2012 WL 5417555, at *1, *3 (4th Cir. November 7, 2012) (unpublished), cert, denied, 133 S.Ct. 2869 (June 24, 2013). On June 19, 2014, petitioner timely filed the instant motion to vacate pursuant to 28 U.S.C. § 2255.


         I. Petitioner's Motion to Vacate under 28 U.S.C. § 2255, [DE #151], and Government's Motion to Dismiss, [DE #155]

         A. Ineffective Assistance of Counsel ("IAC") Standard

         To prove ineffective assistance of counsel, petitioner must satisfy the dual requirements of Strickland v. Washington, 466 U.S. 668, 687 (1984). First, petitioner must show that counsel's performance was deficient in that it fell below the standard of reasonably effective assistance. Id. at 687. In making this determination, there is a strong presumption that counsel's conduct was within the wide range of reasonable professional assistance. Id. at 689. The Strickland court reasoned "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. Second, petitioner must show the defense was prejudiced by the deficient performance of counsel. Id. at 687. Petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

         B. IAC regarding competency

         First, petitioner alleges counsel was ineffective at the competency hearing and sentencing hearing. The waiver in the plea agreement precludes an appeal of issues "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." [DE #108 ¶2c]. The competency hearing took place approximately four months before the entry of the guilty plea, and therefore these claims were precluded by the plea agreement waiver. [DE #71 and #108]. To the extent petitioner alleges ineffective assistance of counsel at the sentencing hearing due to counsel's failure to request another psychiatric evaluation, petitioner relies upon a showing of incompetence by rambling allocution and letters submitted to the court.[2] Petitioner has not brought forth more than conclusory allegations to show why, after a full psychiatric evaluation, finding of competency by the court, and entry of a plea agreement at a Rule 11 hearing, counsel's performance was deficient for not re-raising the competency issue. Therefore, this claim fails.

         C. IAC regarding acceptance of responsibility

         Second, petitioner contends his counsel rendered ineffective assistance by failing to bring to the court's attention the government's breach of the plea agreement by failing to move for an extra one point reduction for acceptance of responsibility.

         The government and petitioner agreed to a three point reduction in the plea agreement, "if the adjusted offense level is 16 or greater." [DE #108 ¶5a]. In his presentence investigation report ("PSR"), petitioner had an adjusted offense level of 36. [DE #120 ¶80] . However, there was no adjustment in the PSR for acceptance of responsibility, as the PSR indicated "[t]he defendant has not accepted responsibility for the instant offense. Since the defendant's guilty plea, he has denied guilt." Id. at ¶82. Defense counsel objected in writing to the PSR's lack of a three point reduction for acceptance of responsibility on the basis the letters written by Snead "denying activities, were meant to apply to the statements in reference to the other crimes to which he did not ple[a]d guilty, " and argued Snead accepted responsibility for the offense to which he pled guilty. [DE #120 ¶9 of Objections]. ' The court heard further argument at sentencing from both parties regarding the three point reduction for acceptance of responsibility. [DE #139 at 9-12]. Following argument, the court awarded a two point reduction for acceptance of responsibility. [DE #139 at 12]. Thus, counsel did not fail to object to the lack of the extra one point reduction for acceptance of responsibility, as petitioner alleges. Therefore, petitioner's argument on ground two fails.

         D. IAC regarding ยง 851(b) and the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.