United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. The government has moved to dismiss
petitioner's motion, petitioner has responded to the
motion to dismiss, and the matter is ripe for ruling. For the
reasons that follow, the government's motion to dismiss
McCormick, was originally sentenced to a term of fifty
months' imprisonment and a term of five years of
supervised release following his plea of guilty to one count
of conspiracy to distribute and possess with intent to
distribute more than fifty grams of cocaine base. [DE 65].
McCormick was released from custody on March 27, 2014, at
which time his term of supervised release commenced.
See [DE 91]. On March 10, 2016, a second amended
motion for revocation was filed based on defendant's
repeated positive drug tests and criminal conduct. [DE 108].
Specifically, defendant tested positive for marijuana on
five, occasions and for cocaine on two occasions within the
first year of his supervision, and he had been charged in
Cumberland County with felony promotion of
prostitution-advance, possession with intent to
manufacture/sell/deliver MDA/MDMA, and felony maintain a
vehicle/dwelling/place for a controlled substance.
hearing on the motion for revocation of supervised release,
the Court found that McCormick had violated the terms of his
supervised release and sentenced McCormick to fifty
months' imprisonment. [DE 115; 120]. McCormick appealed,
and the court of appeals affirmed this Court's judgment.
[DE 125]. On appeal, McCormick argued unsuccessfully that his
revocation sentence is plainly unreasonable because it is
greater than necessary to achieve the purposes of sentencing.
See United States v. Thompson, 595 F.3d 544, 546
(4th Cir. 2010). The court of appeals further rejected
procedural challenges that it believed McCormick had appeared
to raise in near the end of his brief. United States v.
McCormick, 670 Fed.Appx. 85, 87 n. * (4th Cir. 2016).
The United States Supreme Court denied McCormick's
petition for writ of certiorari by opinion entered February
27, 2017. 137 S.Ct. 1218 (2017).
filed this § 2255 motion on June 15, 2017, alleging two
grounds for relief. First, McCormick contends that this Court
abused its discretion by not giving McCormick a full and fair
opportunity to make statements about the bogus state charges
and denying McCormick an opportunity to contest the
government witnesses' credibility in labeling McCormick
as a pimp. Second, McCormick contends that his revocation
counsel failed to make a timely objection to McCormick being
characterized as a pimp and neglected to present evidence
which would have negated any and all adverse testimony by
state detectives. McCormick seeks vacatur of his current
sentence and resentencing within the advisory guidelines
range of thirty to thirty-seven months. The government has
moved to dismiss McCormick's § 2255 motion for
failure to state a claim. Fed.R.Civ.P. 12(b)(6).
survive a motion to dismiss pursuant to Rule 12(b)(6),
[petitioner's] '[f]actual allegations must be enough
to raise a right to relief above the speculative level, '
thereby 'nudg[ing] their claims across the line from
conceivable to plausible. '"Aziz v. Alcolac
Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007)). "Under § 2255(b), [u]nless the motion and
files and records of the case conclusively show that the
prisoner is entitled to no relief, the court must grant a
prompt hearing to determine the issues and make findings of
fact and conclusions of law with respect thereto."
United States v. Thomas, 627 F.3d 534, 539 (4th Cir.
2010) (internal quotation omitted).
first claim, that he was denied the opportunity to fully
allocute and that this Court abused its discretion, fails as
it has either been considered and rejected by the court of
appeals or McCormick failed to raise it before court of
appeals and it is procedurally barred. McCormick contends in
his § 2255 motion that he raised this issue in the court
of appeals. [DE 130 at 4 of 12]. The opinion of the court of
appeals makes no specific reference to the issue, although,
as noted above, it does refer to a number of procedural
issues McCormick had appeared to raise at the end of his
brief, which it summarily rejected as bases for relief. If
McCormick did raise this issue and the court of appeals
rejected it, McCormick may not now raise the issue on
collateral review. See United States v. Roane, 378
F.3d 382, 396 n.7 (4th Cir. 2004) (citing Boeckenhaupt v.
United States, 537 F.2d 1182, 1183 (4th Cir. 1976)).
McCormick could have but failed to raise this issue before
the court of appeals, it is procedurally barred unless
McCormick can demonstrate cause and prejudice or actual
innocence. Bousley v. United States, 523 U.S. 614,
621-22 (1998); see also Thomas, 627 F.3d at 538. In
order to demonstrate cause for failing to raise issues on
direct appeal, a petitioner must show that something that
"cannot be fairly attributed to him, " such as a
factual or legal basis that was not reasonably available or
some impediment by the government existed, prevented him from
raising the issue. Coleman v. Thompson, 501 U.S.
722, 753 (1991). McCormick has not demonstrated cause as he
has alleged no impediment to raising this issue on appeal.
Nor has McCormick demonstrated that he is actually innocent.
In order to demonstrate actual innocence to overcome
procedural default, a petitioner must demonstrate
"factual innocence, not mere legal insufficiency."
Bousley, 523 U.S. at 623. Whether the state court
charges for the conduct forming the basis of McCormick's
criminal conduct violation were dismissed is of no import. A
revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of
supervised release authorized by statute for the offense that
resulted in such term of supervised release without credit
for time previously served on postrelease supervision, if the
court, pursuant to the Federal Rules of Criminal Procedure
applicable to revocation of probation or supervised release,
finds by a preponderance of the evidence that the defendant
violated a condition of supervised release ....
18 U.S.C.A. § 3583(e)(3). Upon the government's
showing at McCormick's revocation hearing, the Court
found, by a preponderance of the evidence, that McCormick had
violated the terms of his supervised release. McCormick has
failed to demonstrate that he is actually innocent of his
supervised release violations and his collateral attack of
his opportunity of allocute is barred.
the Court would note that McCormick was allowed a full and
fair opportunity to allocute and his claim is without merit.
Fed. R. Crim. P. 32(i)(4)(A)(ii) provides that a court must
address the defendant personally and permit the defendant to
speak or present any information to mitigate the sentence.
See also United States v. Muhammad, 478 F.3d 247,
249 (4th Cir. 2007). At the revocation hearing, McCormick was
asked if he wished to speak and he did speak for what
comprises more than twelve pages of the sentencing
transcript. [DE 121]. While a court may not deny a defendant
the right to speak on his own behalf,
[t]his is not to say that a defendant's right to address
the sentencing court is unlimited. The exercise of his right
may be limited both as to duration and as to content. He need
be given no more than a reasonable time; ...