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Copeland v. United States

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

January 22, 2018

LARRY JUNIOR COPELAND, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JAMES C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE.

         On October 10, 2014, Larry Junior Copeland ("Copeland") moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his 216-month sentence [D.E. 53] 4. On November 3, 2014, Copeland filed a supporting affidavit [D.E. 56] and a motion for discovery [D.E. 57]. On February 22, 2016, Copeland filed an amended motion to vacate [D.E. 65]. On June 20, 2016, Copeland filed a second amended motion to vacate [D.E. 69]. On July 18, 2016, the court stayed the action pending the Supreme Court's decision in Beckles v. United States, [D.E. 72]; see [D.E. 71]. On June 29, 2017, the government moved to lift the stay [D.E. 76], responded to Copeland's section 2255 motions, and filed a supporting memorandum [D.E. 77]. On July 24, 2017, Copeland replied. See[D.E. 81]. On October 13, 2017, Copeland moved for appointment of counsel [D.E. 82]. As explained below, the court grants the government's motion to lift the stay, dismisses Copeland's section 2255 motions, and denies Copeland's motion for appointment of counsel.

         I.

         On June 20, 2010, a federal grand jury in the Eastern District of North Carolina indicted Copeland and charged him with (1) distributing a quantity of cocaine in violation of 21 U.S.C. § 841(a)(1) (count one) and (2) distributing five or more grams of cocaine base ("crack") in violation of 21 U.S.C. § 841(a)(1) (count two). See [D.E. 1]; United States v. Copeland, 707 F.3d 522, 524 (4th Cir. 2013). On February 22, 2011, pursuant to a plea agreement [D.E. 34], Copeland pleaded guilty to count two. See [D.E. 45]; Copeland, 707 F.3d at 525. On June 9, 2011, the court sentenced Copeland to 216 months' imprisonment. See Sentencing Tr. [D.E. 46] 13-19; Copeland, 707 F.3d at 526-28. Copeland appealed. On February 25, 2013, the United States Court of Appeals for the Fourth Circuit enforced the appellate waiver in Copeland's plea agreement, dismissed Copeland's appeal of his prison sentence, rejected Copeland's appeal of his eight-year term of supervised release, and rejected Copeland's appeal of this court's denial of his motion to continue his sentencing hearing. See Copeland, 707 F.3d at 528-31.

         In Copeland's section 2255 motions, Copeland makes four claims: (1) ineffective assistance of trial counsel for failing to tell Copeland about the mandatory minimum and statutory maximum for count two under the plea agreement; (2) ineffective assistance of trial counsel for failing to object that the Fair Sentencing Act deprived the court of jurisdiction to sentence Copeland; (3) ineffective assistance of appellate counsel for failing to argue that the Fair Sentencing Act required the court to reduce Copeland's advisory guideline range, and (4) that he is not a career offender under Johnson v. United States, 135 S.Ct. 2551 (2013), and that his sentence violated the Fair Sentencing Act and McFadden v. United States, 135 S.Ct. 2298 (2015), Moncrieffe v. Holder, 569 U.S. 184 (2013); Descamps v. United States, 570 U.S. 254 (2013), and Lopez v. Gonzales, 549 U.S. 47 (2010). See [D.E. 53]; [D.E. 65-1]; [D.E. 69]. On June 29, 2017, the government moved to dismiss the motions for failure to state a claim upon which relief can be granted. See [D.E. 76, 77]. On July 24, 2017, Copeland replied. See [D.E. 81].

         A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted" tests a complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-63, 570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), affd. 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008); accord Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a complaint's legal conclusions. See, e.g., Iqbal, 556 U.S. at 678. Similarly, a court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 677-79. Moreover, a court may take judicial notice of public records without converting a motion to dismiss into a motion for summary judgment. See, e.g., Fed.R.Evid. 201; Tellabs. Inc. v. Makor Issues & Rights. Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009); United States v. McGill, 11 F.3d 223, 225 (1 st Cir. 1993). Likewise, a court may rely on its own familiarity with the case. See, e.g., Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977); United States v. Dyess, 730 F.3d 354, 359-60 (4th Cir. 2013).

         As for Copeland's claims that his sentence violated the Fair Sentencing Act or McFadden, Moncrieffe, Descamps, and Lopez, Copeland failed to raise these claims on direct appeal. Thus, the general rule of procedural default bars Copeland from presenting these claims under section 2255. See, e.g., Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 621 (1998); United States v. Fugit, 703 F.3d 248.253 (4th Cir. 2012); United States v. Sanders, 247 F.3d 139, 144 (4th Cir. 2001). Furthermore, Copeland has not plausibly alleged "actual innocence" or "cause and prejudice" resulting from alleged errors about which he now complains. See Bousley, 523 U.S. at 622-24; United States v. Frady, 456 U.S. 152, 170 (1982); United States v. Pettiford, 612 F.3d 270, 280-85 (4th Cir. 2010); United States v. Mikalajunas, 186 F.3d 490, 493-95 (4th Cir. 1999). Accordingly, these claims fail.

         As for Copeland's challenge to his career-offender status or the calculation of his advisory guideline range, he may not pursue these claims in this section 2255 action. See United States v. Foote, 784 F.3d 931.936-40 (4th Cir. 2015); United States v. Pregent, 190 F.3d 279, 283-84 (1999); see also Whiteside v. United States, 775 F.3d 180, 183-87 (4th Cir. 2014) (en banc); Mikalajunas. 186 F.3d at 495-96. Thus, these claims fail.

         Likewise, Copeland cannot use Johnson retroactively in this section 2255 action to challenge the Guidelines as vague or to challenge his career-offender status. See, e.g.. Beckles v. United States, 137 S.Ct. 886, 895-97 (2017); United States v. Mack, 855 F.3d 581, 584-85 (4th Cir. 2017); United States v. Lee, 855 F.3d 244, 246-47 (4th Cir. 2017). Thus, this claim fails.

         As for Copeland's claim concerning his understanding of the mandatory minimum and statutory maximum for count two under the plea agreement, Copeland raised that claim on direct appeal and lost. See Copeland, 707 F.3d at 525-31. Copeland cannot use section 2255 to recharacterize and relitigate a claim he lost on direct appeal. See, e.g.. Frady, 456 U.S. at 164-65; Dyess, 730 F.3d at 360; United States v. Roane, 378 F.3d 382, 296 & n.7 (4th Cir. 2004); Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976) (per curiam). Thus, this claim fails.

         Alternatively, Copeland's plea agreement contains an appellate waiver. See [D.E. 34] ¶ 2(c). In the waiver, Copeland agreed

[t]o waive knowingly and expressly the right to appeal whatever sentence is imposed, including any appeal pursuant to 18 U.S.C. § 3742, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing, and further to waive any right to contest the conviction or sentence in any post-conviction proceeding, including any proceeding under 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea. The foregoing appeal waiver does not constitute or trigger a waiver by the United States of any of its rights to appeal provided by law.

Id. In light of Copeland's Rule 11 proceeding, the appellate waiver is enforceable. See Copeland, 707 F.3d at 528-30; United States v. Davis, 689 F.3d 349, 354-55 (4th Cir. 2012) (per curiam); United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012); United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Other than Copeland's ineffective assistance of counsel claims, Copeland's other claims fall within the appellate waiver. Accordingly, the waiver bars these other claims.

         As for Copeland's ineffective assistance of counsel claims, " [t]he Sixth Amendment entitles criminal defendants to the effective assistance of counsel-that is, representation that does not fall below an objective standard of reasonableness in light of prevailing professional norms." Bobby v. Van Hook,558 U.S. 4, 7 (2009) (per curiam) (quotations omitted). The Sixth Amendment right to counsel extends to all critical stages of a criminal proceeding, including plea negotiations, trial, sentencing, and appeal. See, e.g.. Missouri v. Frye,566 U.S. 134, 141 (2012); Lafler v. Cooper, 566 U.S. 156, 165 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001). "[Sentencing is a critical stage of trial at which a defendant is entitled to effective assistance of counsel, and a sentence imposed without effective assistance must be vacated and reimposed to permit facts in mitigation of punishment to be fully and freely developed." United States v. Breckenridge, 93 F.3d 132, 135 (4th Cir. 1996); see Glover, 531 U.S. at 203-04. To state a claim of ineffective assistance of ...


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