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Cox v. United States

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

November 8, 2017

LIONEL LAMONT COX, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This matter is before the court on petitioner's motion to vacate, set aside, or correct sentence, made pursuant to 28 U.S.C. § 2255, as corrected and amended. (DE 126, 150). Also before the court is the government's motion to dismiss. (DE 157). The issues raised are ripe for ruling. For the reasons that follow, this court denies petitioner's motion to vacate and grants the government's motion to dismiss.

         BACKGROUND

         On August 29, 2012, petitioner was charged on two counts of possession of a firearm by a felon and aiding and abetting a co-defendant, Neville Ward (“Ward”), in the commission of the same offense, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 2. Petitioner pleaded not guilty on November 16, 2012. Following a two-day trial, on February 14, 2013, the jury returned a verdict of guilty on both counts. On May 9, 2013, the court sentenced petitioner to a total of 200 months imprisonment.[1] Petitioner appealed, and the Court of Appeals for the Fourth Circuit affirmed the judgment of the court. United States v. Cox, 591 F. App'x 181 (4th Cir. 2014). Petitioner filed a petition for certiorari in the Supreme Court, but it was denied on March 9, 2015. Cox v. United States, 135 S.Ct. 1538 (2015).

         On October 28, 2015, petitioner filed the instant§ 2255 motion. After filing his petition, petitioner requested, and was allowed, to amend his petition, deemed filed as of February 8, 2016.[2]In these filings, petitioner alleges ineffective assistance of trial and appellate counsel and argues that he is innocent of the aiding and abetting conviction because the evidence failed to satisfy the requirements for aiding and abetting liability under Rosemond v. United States, 134 S.Ct. 1240 (2014). On April 13, 2017, at the direction of the court, petitioner filed additional supplemental memorandum, arguing ineffective assistance of trial and appellate counsel for failure to raise a claim based on Johnson v. United States, 135 S.Ct. 2551 (2015) and, that in light of Johnson, petitioner's sentence under the sentencing guidelines had been incorrectly calculated. The government filed a motion to dismiss petitioner's first § 2255 motion on December 9, 2015 and motion to dismiss petitioner's amended § 2255 motion on July 11, 2017, arguing that petitioner has failed to state a claim for ineffective assistance of counsel under the applicable two-prong analysis in Strickland v. Washington, 466 U.S. 668 (1984) and failed to state a claim for relief as to actual innocence. Additionally, the government responded to petitioner's supplemental briefing regarding Johnson, arguing again that petitioner failed to state a claim for ineffective assistance of counsel under Strickland and that the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017) precluded petitioner's ability to use Johnson to challenge the constitutionality of his sentence.[3]

         COURT'S DISCUSSION

         A. Standard of Review

         A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b).

         B. Analysis

         1. Ineffective Assistance of Counsel

         Petitioner has raised nine claims of ineffective assistance of counsel.[4] In order to establish ineffective assistance of counsel, a petitioner must satisfy a two-pronged test. See Strickland, 466 U.S. at 687. Under the first prong, a petitioner must show that his counsel's representation “fell below an objective standard of reasonableness.” Id. at 688. The court must be “highly deferential” to counsel's performance and must make every effort to “eliminate the distorting effects of hindsight.” Id. at 689. Therefore, the court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. The second prong requires a petitioner to show that he was prejudiced by the ineffective assistance by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

         First, petitioner alleges that trial counsel was ineffective in failing to investigate whether the firearms at issue were firearms for purposes of 18 U.S.C. §921(a)(3)(A). (DE 126 at 7). However, trial testimony established that the items transferred to the informant in the case were firearms. (DE 114 at 123-26; DE 115 at 23-27). Although the firearm acquired on June 27, 2012, was found to have a broken firing pin (DE 115 at 24), the firearm still satisfied the definition of a firearm under the statute at issue. See 18 U.S.C. § 921(a)(3)(A) (defining a firearm as “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive”); (see also DE 115 at 24 (officer testifying that “[a]nyone with knowledge . . . could have that weapon in working order in just a few minutes”). As a result, counsel was not ineffective in not further investigating this issue, and petitioner's argument fails the first prong of Strickland.

         Second, petitioner alleges that the government failed to disclose certain information before trial concerning the government's main witness, a paid informant, that prevented effective preparation for cross-examination of that witness. (See DE 126-2 at 1, ¶ 3). The information not disclosed referenced by petitioner concerns the paid informant's history of being a paid informant. The record reveals that defense counsel thoroughly addressed this issue on cross examination, showing the informant was paid a significant amount of money over a relatively lengthy period of time to act as an informant. (DE 114 at 110-14). As a result, this argument fails both prongs of Strickland.

         Third, petitioner alleges that he informed counsel that he did not “possess the firearm and that the videos were altered and the videos never show me actually possessing the firearm and this was entrapment.” (DE 126-2 at 1, ¶ 4). Petitioner offers no other details as to how the videos were altered. Additionally, petitioner has not shown that counsel's decision to not pursue an entrapment defense fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . .”). Finally, petitioner does not show that had counsel objected to the video or offered an entrapment defense, the result of the proceeding would have been different. Therefore, this argument fails both prongs of Strickland.

         Fourth, petitioner alleges that trial counsel “tried to coerce (him) to plea guilty to 15 to Life for Armed Career Criminal without doing an investigation of the Statute in this case.” (DE 126-2 at 2, ¶ 5). Whether true or not, because petitioner ...


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