United States District Court, E.D. North Carolina, Southern Division
MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on the government's motion to
dismiss petitioner's 28 U.S.C. § 2255 motion to
vacate, [DE #128]. Petitioner's motion to extend time to
file a response, [DE #131], is hereby GRANTED, and
petitioner's response, [DE #132], is considered timely
filed by this court. This matter is ripe for adjudication.
March 02, 2011, Petitioner was found guilty by a jury of the
following seven counts: conspiracy to distribute and possess
with the intent to distribute 50 grams or more of cocaine
base (crack), in violation of 21 U.S.C. § 846 and 841(a)
(1) (Count One); distribution of fifty (50) grams or more of
cocaine base (crack), in violation of 21 U.S.C. § 841(a)
(1) (Count Two); distribution of five (5) grams or more of
cocaine base (crack), in violation of 21 U.S.C. §
841(a)(1) (Count Three); possession with intent to distribute
fifty (50) grams or more of cocaine base (crack), in
violation of 21 U.S.C. § 841(a)(1) (Count Four);
possession of firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1) and § 924 (Count Five); possession of a
firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1) (Count Six); and
conspiracy to commit money laundering to conceal the proceeds
of drug trafficking, in violation of 18 U.S.C. § 1956(h)
(Count Seven) . This court sentenced petitioner to a term of
imprisonment of 420 months on June 15, 2011.
appealed his 18 U.S.C. § 922(g)(1) conviction, his
statutory sentencing enhancements, and his classification as
a career offender based upon the Fourth Circuit's ruling
in United States v. Simmons, 649 F.3d 237,
241 (4th Cir. 2011) (en banc). In their unopposed motion to
remand, the government conceded that post Simmons,
petitioner's conviction for being a felon in possession
of a firearm was no longer sustainable, that the statutory
sentencing enhancements should no longer apply, and that
petitioner should not be classified as a career offender.
United States v. Parker, 11-4647 at 3
(4th Cir. 2012) . The Court reversed
petitioner's § 922(g) conviction; affirmed the
remaining convictions; vacated his sentence and remanded. [DE
#95 at 5].Petitioner was resentenced to a term of
imprisonment of 384 months on May 8, 2012. Petitioner again
appealed, and the Fourth Circuit affirmed the sentence of 384
months, but remanded to the district court for the limited
purpose of correcting clerical errors pursuant to Federal
Rule of Criminal Procedure 36. This court amended the
clerical errors by amended judgment of April 17, 2014, [DE
#119] . The Supreme Court denied his petition for writ of
certiorari on June 16, 2014.
then timely filed the instant motion to vacate on June 12,
2015, alleging counsel was ineffective by (1) failing to
advise petitioner of the application of the federal
sentencing guidelines and how relevant conduct would be used
to calculate his sentence; (2) by failing to clarify to
petitioner that he would not receive an acceptance of
responsibility sentence reduction after proceeding to trial,
although he volunteered information prior to trial; (3) by
failing to advise prior to trial that the government had the
option of filing a 21 U.S.C. § 851 notice of previous
convictions to be relied upon which would increase the
minimum term of imprisonment; and (4) by failing to advise
that petitioner could plead guilty without a plea agreement
and receive a sentence reduction for acceptance of
alleges that due to ineffective assistance of trial counsel
he pled not guilty and proceeded to trial, losing the
sentence reduction for acceptance of responsibility that
would have been applied to his sentencing guideline range if
he had pled guilty [DE #123-1].
Ineffective Assistance of Counsel ("IAC")
prove ineffective assistance of counsel,, petitioner must
satisfy the dual requirements of Strickl'and 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.
IAC Regarding Relevant Conduct
alleges counsel rendered ineffective assistance by failing to
advise petitioner regarding the impact of relevant conduct on
the sentencing guidelines calculation. [DE #123-1 at 16] .
The impact of relevant conduct on the calculation of his
sentencing guidelines would not have changed whether his
conviction resulted from a guilty plea or a jury verdict.
Therefore, this argument is without merit.
IAC Regarding 21 U.S.C. § 851
alleges counsel failed to advise' petitioner the
government could file a notice under 21 U.S.C. § 851 to
increase the statutory minimum term of imprisonment. This
argument is without merit as, following petitioner's
appeal, the statutory enhancements were no longer applicable
and were not applied at ...