United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge.
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1).
December 2013, a Mecklenburg County Sheriff's deputy
stopped a Ford Mustang in which Petitioner Montez Gaddy was a
passenger. (Crim. Case No. 3:13-cr-325-RJC-DCK-1, Doc. No. 49
at ¶ 4-17: PSR). The stop was made at the request of the
United States Marshals Service, which was conducting a
fugitive investigation. (Id.). A woman was driving
the car, and Petitioner and another woman were passengers.
(Id.). Law enforcement officers, including United
States Marshal Joe Graham, who was driving a Ford Explorer,
surrounded the vehicle. (Id.). A sheriff's
deputy ordered the driver of the Mustang to stop and ordered
Petitioner to get out of the car. (Id.). Although
the driver attempted to comply, Petitioner did not.
(Id.). Instead, Petitioner yelled, “drive
bitch drive, ” and sought to take control of the
Mustang from the driver. (Id.). He eventually
succeeded when the two women got out of the vehicle, and he
slid into the driver's seat. (Id.).
returned to his vehicle after unsuccessfully attempting to
open the Mustang's door. (Id.). He then
positioned his Explorer to block Petitioner's avenue of
escape. (Id.). Petitioner revved the Mustang's
engine and then drove it into the rear driver's side of
Graham's Explorer, causing extensive damage.
(Id.). Petitioner then maneuvered the Mustang
between Graham's Explorer and another law enforcement
vehicle. (Id.). A high-speed chase ensued.
(Id.). Officers found the Mustang abandoned in a
parking lot. (Id.). Eventually, Petitioner, who was
in a nearby residence, surrendered and was arrested.
jury indicted Petitioner, charging him with using a dangerous
weapon to “forcibly assault, resist, oppose, impede,
intimidate, and interfere with” an officer of the
United States engaged in the performance of his duties, in
violation of 18 U.S.C. § 111(a)(1) and
(b).(Crim. Case No. 3:13-cr-325-RJC-DCK-1, Doc.
No. 1: Indictment). Petitioner proceeded to trial and
testified in his own defense. (Id., Doc. No. 57 at
17: Trial Tr.). He testified that he was guilty of
“resisting and opposing, not assault.”
(Id. at 38). This Court instructed the jury that the
elements of a Section 111 offense were: (1) “that the
defendant forcibly assaulted, resisted, opposed, impeded,
intimidated, or interfered with” Graham; (2) that
Graham was a federal officer engaged in the performance of
his official duties; (3) that the defendant used a deadly or
dangerous weapon; and (4) that the defendant acted
intentionally. (Id. at 212).
jury convicted Petitioner of the charge, specifically finding
that he had used a dangerous weapon in committing the
offense. (Id., Doc. No. 41: Jury Verdict). At
sentencing, this Court found that an upward departure and
variance was necessary to reflect the seriousness of
Petitioner's offense and criminal history, as well as to
protect the public from further crimes by Petitioner.
(Id., Doc. No. 76 at 22-27). This Court sentenced
Petitioner to 120 months of imprisonment. (Id. at
appealed, arguing that this Court had erred in calculating
the applicable guideline range. The Fourth Circuit affirmed.
United States v. Gaddy, 656 F. App'x 628 (4th
Cir. July 13, 2016), pet. for reh'g en banc
denied, No. 15-4551 (Aug. 9, 2016), cert.
denied, 137 S.Ct. 677 (2017). Petitioner timely filed
the present motion to vacate on July 11, 2017, in which he
argues that he received ineffective assistance of counsel on
appeal, because counsel's petitions for rehearing en banc
and for a writ of certiorari were not based on a newly issued
Tenth Circuit decision, and that this Court erred in
instructing the jury. He also requests an abeyance of at
least 30 to 60 days to obtain emails that he allegedly sent
to his attorney. (Civ. Doc. No. 1-1 at 8).
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the arguments presented by Petitioner can be
resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
Petitioner's Claim of Ineffective Assistance of Appellate
court first addresses Petitioner's claim of ineffective
assistance of appellate counsel, in which Petitioner contends
that counsel was ineffective for failing to base her
petitions for rehearing en banc and for a writ of certiorari
on United States v. Wolfname, 835 F.3d 1214 (10th
Cir. 2016) a decision by the Tenth Circuit Court of Appeals
in which that circuit held that assault is an element of a
Section 111 offense. The Sixth Amendment to the U.S.
Constitution guarantees that in all criminal prosecutions,
the accused has the right to the assistance of counsel for
his defense. See U.S. CONST. amend. VI. To show
ineffective assistance of counsel, Petitioner must first
establish a deficient performance by counsel and, second,
that the deficient performance prejudiced him. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
In making this determination, there is “a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Id. at 689; see also United States v. Luck,
611 F.3d 183, 186 (4th Cir. 2010).
in considering the prejudice prong of the analysis, the Court
“can only grant relief under . . . Strickland
if the ‘result of the proceeding was fundamentally
unfair or unreliable.'” Sexton v. French,
163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v.
Fretwell, 506 U.S. 364, 369 (1993)). Under these
circumstances, the petitioner “bears the burden of
affirmatively proving prejudice.” Bowie v.
Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the
petitioner fails to meet this burden, a “reviewing
court need not even consider the performance prong.”
United States v. Rhynes, 196 F.3d 207, 232 (4th Cir.
1999), opinion vacated on other grounds, 218 F.3d
310 (4th Cir. 2000). To establish ineffective assistance of
counsel at sentencing, ...