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Parker v. United States

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

January 23, 2018

RUSHAUN NECKO PARKER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         On 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.

         Petitioner 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.

         Petitioner 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 responsibility.

         Petitioner 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].

         COURT'S DISCUSSION

         I. Ineffective Assistance of Counsel ("IAC") Standard

         To 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.

         A. IAC Regarding Relevant Conduct

         Petitioner 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.

         B. IAC Regarding 21 U.S.C. § 851

         Petitioner 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 ...


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