United States District Court, E.D. North Carolina, Western Division
Malcolm J. Howard, Senior United States District Judge
matter is before the court on the government's motion to
dismiss, [DE #25], petitioner's motion to vacate under 28
U.S.C. § 2255, [DE #20], Petitioner has not filed a
response,  the time for response has expired, and
this matter is ripe for adjudication.
September 14, 2015, petitioner pled guilty to conspiracy to
distribute and possess with the intent to distribute a
quantity of cocaine, cocaine base (crack), and marijuana, in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(C)
preparation of the Presentence Investigation Report (PSR),
the base offense level was calculated to be 30 and following
a two-level adjustment pursuant to United States Sentencing
Guidelines ("USSG") § 2D1.1(b)(1) for
possession of a dangerous weapon, the adjusted offense level
was calculated to be 32. [DE #16 PSR ¶¶ 50, 59] .
Following a three-level adjustment for acceptance of
responsibility pursuant to petitioner's assistance to
authorities and timely notification to authorities of his
intent to enter a guilty plea, the total offense level was
29. Counsel for petitioner made multiple written objections
to the PSR but did not contest the two-level enhancement
pursuant to USSG § 2Dl.l(b)(1) for possession of a
sentencing on January 12, 2016, petitioner's counsel
objected to the drug weight attributed to the petitioner, and
the inclusion of the income of his spouse. [DE #16 at 16-17].
These objections were denied and the government's motion
under USSG § 5K1.1 to depart downward from the advisory
guideline range of imprisonment of 140 to 175 months, was
granted. [DE #16 at ¶ 61; #18]. Accordingly, the court
sentenced petitioner to a term of imprisonment of 90 months.
did not appeal. Petitioner timely filed this motion to vacate
on April 1, 2016, raising one claim alleging counsel rendered
ineffective assistance by failing to object to the two-level
increase for possession of a firearm pursuant to USSG §
2D1.1(b)(1). [DE #20 at 5-8].
I. Ineffective Assistance of Counsel
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.
alleges counsel rendered ineffective assistance by failing to
object to the two-level enhancement for possession of a
firearm pursuant to USSG § 2Dl.l(b)(1). The presentence
report provided upon search of petitioner's residence
after his arrest, a loaded 12 gauge shotgun and a 9mm handgun
were found in the woods next to the residence. Two
individuals present advised law enforcement petitioner had
been in possession of the firearms during the offense
conduct. A search of the residence revealed 9mm bullets. One
of the individuals hiding in the woods advised law
enforcement that he and the other individual had removed the
drugs and firearms from the residence prior to the arrival of
law enforcement. [DE #16 ¶ 4]. "Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action 'might be
considered sound trial strategy.'"
Strickland, 466 U.S. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). In light of the
offense conduct, counsel for petitioner did not depart from a
reasonable standard of conduct by failing to object to a
two-level enhancement for possession of a firearm. Therefore,
this claim is without merit.
foregoing reasons, the government's motion to dismiss,
[DE #25], is GRANTED. Petitioner's motion, [DE #20], is
DISMISSED. 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). 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, 683-84 (4th Cir. 2001). A