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Gaddy v. United States

United States District Court, W.D. North Carolina, Charlotte Division

October 26, 2017

MONTEZ GADDY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr. United States District Judge.

         THIS 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).

         I. BACKGROUND

         In 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.).

         Graham 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. (Id.).

         A grand 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).[1](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).

         The 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 27).

         Petitioner 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).

         II. STANDARD OF REVIEW

         Rule 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).

         III. DISCUSSION

         A. Petitioner's Claim of Ineffective Assistance of Appellate Counsel

         The 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).

         Furthermore, 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, ...


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