United States District Court, E.D. North Carolina, Northern Division
Malcolm J. Howard, Senior United States District Judge
matter is before the court on the government's motion to
dismiss, [DE #93], petitioner's motion to vacate under 28
U.S.C. § 2255, [DE #89]. Petitioner has filed a
response, [DE #95], and this matter is ripe for adjudication.
Also before the court is petitioner's motion to correct
and modify judgment, [DE #77].
April 8, 2014, petitioner pled guilty, pursuant to a written
plea agreement, to distribution of cocaine, in violation of
21 U.S.C. § 841(a) (1) . On March 11, 2015, this court
sentenced petitioner to a term of imprisonment of 168 months,
a sentence at the bottom of his guideline range established
at sentencing.Petitioner appealed, and the Fourth Circuit
Court of Appeals dismissed his appeal on December 2, 2015. On
December 2, 2016, petitioner filed the instant motion to
vacate, raising three claims of ineffective assistance of
counsel. First, he argues counsel was ineffective for failure
to communicate the consequences of a guilty plea; failure to
conduct an adequate pretrial investigation; and failure to
negotiate a favorable plea agreement. Second, petitioner
argues counsel was ineffective for failure to discuss the PSR
with him; failure to file PSR objections; and failing to
object to the sentence as unreasonable. Third, petitioner
argues counsel was ineffective by not communicating with him
regarding an appeal; by not permitting him to participate in
his appeal; and by not raising issues that petitioner felt
were strongest on appeal.
Ineffective Assistance of Counsel ("IAC")
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.
court has carefully reviewed petitioner's motion, the
government's motion to dismiss and supporting memorandum,
and petitioner's response to the government's motion.
The court finds the government's motion and memorandum
are well reasoned and proper in this matter. For the reasons
stated in the government's memorandum, the court finds
petitioner has failed to state a claim upon which relief may
be granted, specifically that he has failed to state a claim
for ineffective assistance of counsel. Therefore, the §
2255 motion fails.
Petitioner's Motion to Correct and Modify Judgment, [DE
contends the judgment entered by this court, [DE #68], should
be modified because the state court order requiring
petitioner to pay child support has been stayed pending
petitioner's release from incarceration. Considering the
state court order is stayed and not satisfied in full, the
court finds no reason to alter the judgment. Therefore,
petitioner's motion to correct and modify the judgment is
foregoing reasons, the government's motion to dismiss,
[DE #93], is GRANTED. Petitioner's motion, [DE #89], is
DISMISSED. The court further orders petitioner's motion
to correct and modify judgment, [DE #77], is hereby DENIED.
The clerk is directed to close this case.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2) (2000). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, ...