United States District Court, E.D. North Carolina, Western Division
Malcolm J. Howard Senior United States District Judge
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.
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). [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November 7, 2012) (unpublished), cert, denied, 133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.
Petitioner's Motion to Vacate under 28 U.S.C. §
2255, [DE #151], and Government's Motion to Dismiss, [DE
Ineffective Assistance of Counsel ("IAC")
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.
IAC regarding competency
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. 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.
IAC regarding acceptance of responsibility
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
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.
IAC regarding § 851(b) and the ...