United States District Court, E.D. North Carolina, Southern Division
C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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].
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).
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.
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
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.
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.
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
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