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Okafor v. United States

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

December 18, 2017

FELIX A. OKAFOR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Malcolm J. Howard, United States District Judge

         This matter is before the court on the government's motion to dismiss, [D.E. #170], petitioner's motion to vacate under 28 U.S.C. § 2255, [D.E. #162]. Petitioner has filed a response, [D.E. #173], and this matter is ripe for adjudication.

         BACKGROUND

         On July 11, 2013, petitioner was found guilty by a jury of conspiracy to distribute and possess- with the intent to distribute 100 kilograms or more of marijuana and 100 grams or more of heroin, in violation of 21 U.S.C. § 846 (Count One); maintaining a dwelling for the purpose of manufacturing and distributing marijuana and heroin, in violation of 21 U.S.C. § 856 (Count Two); distribution of a quantity of marijuana and heroin within 1, 000 feet of the real property comprising a public secondary school, in violation of 21 U.S.C. § 860 (Count Three); distribution of a quantity of marijuana, in violation of 21 U.S.C. § 841(a) (1) (Counts Four, Six, Eight, and Ten); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (1) (A) (i) (Count Five); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(C) (Counts Seven, Nine, Eleven, Thirteen, Fifteen, Seventeen, Nineteen, Twenty-One, Twenty-Three, and Twenty-Five); distribution of a quantity of heroin, in violation of 21 U.S.C. § 841(a) (1) (Counts Twelve, Fourteen, Sixteen, Eighteen, Twenty, and Twenty-Two); and possession with the intent to distribute a quantity of heroin and a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count Twenty-Four).

         Following preparation of the Presentence Investigation Report (PSR), the base offense level was calculated to be 32 and following a two-level adjustment pursuant to United States Sentencing Guidelines ("USSG") § 2Dl.l(b)(12) and a two-level adjustment pursuant to USSG § 3Bl.l(c), the adjusted offense level was calculated to be 36. [D.E. #112 PSR ¶49]. No adjustment for acceptance of responsibility was applied pursuant to petitioner's not guilty plea to all counts and trial by jury, and the total offense level was 36. Petitioner did not make any written objections to the PSR.

         At sentencing on April 10, 2014, Petitioner's counsel objected to the drug weight attributed to the petitioner, and the court granted in part and denied in part the objection. The court's decision resulted in a base offense level of 26, and a total offense level of 30. Accordingly, this court sentenced petitioner to 97 months as to Counts One, Two, Three, Four, Six, Eight, Ten, Twelve, Fourteen, Sixteen, Eighteen, Twenty, Twenty-Two, and Twenty-Four, to run concurrently; 60 months as to Count Five to run consecutively; and 300 months as to Counts Seven, Nine, Eleven, Thirteen, Fifteen, Seventeen, Nineteen, Twenty-One, Twenty-Three, and Twenty-Five, each to run consecutively, for a total term of imprisonment of 3, 157 months.

         Petitioner timely filed an appeal, and the judgment was affirmed by unpublished written opinion by the Fourth Circuit Court of Appeals on March 2, 2015. [DE #153]. The mandate issued on May 5, 2015. [DE #157]. On February 10, 2016, petitioner filed a motion to reduce his sentence regarding the Drug Quantity Table Amendment pursuant to Standing Order 14-SO-01. [DE #159]. This motion was granted, reducing the term of imprisonment of 97 months to 78 months on each of Counts One, Two, Three, Four, Six, Eight, Ten, Twelve, Fourteen, Sixteen, Eighteen, Twenty, Twenty-Two, and Twenty-Four, to remain concurrent. [DE #160]. The term of imprisonment for all other counts remained in effect. Id.

         Petitioner timely filed this motion to vacate on June 13, 2016, raising nine ineffective assistance of counsel claims that resulted in alleged "constitutional violation of his Fifth, Sixth, Fourteenth Amendment Rights to Due Process." [DE #162-1 at 3].

         COURT'S DISCUSSION

         I. Ineffective Assistance of Counsel ("IAC") Standard [1]

         To 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 687-91. 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 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.

         A. Counsel's Failure to Argue Petitioner's Drug Convictions Violated Double Jeopardy Petitioner alleges counsel rendered ineffective assistance by failing to argue that the drug convictions were lesser included offenses of Count Three, distributing a quantity of marijuana and a quantity of heroin within 1, 000 feet of a school, under 21 U.S.C. § 8 60, and thus a conviction on Count Three as well as the drug counts was a violation of the Double Jeopardy Clause. [DE #162-1 at 17-20]. "The Double Jeopardy Clause of the Fifth Amendment provides that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb.'" United States v. Hall, 551 F.3d 257, 266 (4th Cir. 2009) (quoting U.S. Const, amend. V). "This constitutional guarantee has two distinct components, applying 'both to successive punishments and to successive prosecutions for the same criminal offense.'" Hall, 551 at 266 (citing United Sates v. Dixon, 509 U.S. 688, 696 (1993)). "Both of these double jeopardy components serve 'a constitutional policy of finality for the defendant's benefit, ' by ensuring against attempts to impose 'more than one punishment for the same offense' or additional punishment after a prior conviction or acquittal." Id. (quoting Brown v. Ohio, 432 U.S. 161, 165-66 (1977)).

         However, double jeopardy is not implicated by a determination of guilt and punishment on one count of a multicount indictment and continued prosecution on any remaining counts that are greater or lesser included offenses of the charge just concluded. Ohio v. Johnson, 467 U.S. 493, 501-02 (1984); See also Buchanan v. Angelone, 103 F.3d 344, 349-50 (4th Cir. 1996) (finding "by pleading guilty to the lesser included offenses, the defendant 'has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial.") (quoting Ohio, 467 U.S. at 501).

         Double jeopardy was not violated where a defendant was convicted of two similar crimes, a violation of 18 U.S.C. § 924(c) as well as 18 U.S.C. § 13(a), "unlawfully and maliciously shoot[ing] at an occupied vehicle, putting in peril the life of the occupant therein, " because "each crime charged contains an element that the other does not." United States v. Terry, 86 F.3d 353, 355-56 (4th Cir. 1996) (quoting Va. Code. Ann. § 18.2-154, assimilated as a federal charge under the Assimilated Crimes Act). Similarly, there was no double jeopardy violation here, as the lesser included offenses were charged as separate counts of a multicount indictment, and 21 U.S.C. § 841 did not require proof of a specific location of distribution of controlled substances, while conviction under 21 U.S.C. § 860(a) required proof of an additional element, ...


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