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Robinson v. United States

United States District Court, W.D. North Carolina, Charlotte Division

March 29, 2018

SEAN MAURICE ROBINSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr. United States District Judge

         THIS MATTER is before the Court on Petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), the Government's Response, (Doc. No. 6), as well as Petitioner's Proposed Order, (Doc. No. 5), Consolidated Motion and Reply, (Doc. No. 7), and Motion for Immediate Ruling or Release Pending Ruling, (Doc. No. 8).

         I. BACKGROUND

         Petitioner was indicted for: Count (1), conspiracy to traffic more than 100 kilograms of a substance containing a detectable amount of marijuana in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 846; Count (2) possession with intent to distribute marijuana; Count (3), possession of a firearm in furtherance of a drug trafficking crime; and Count (4), possession of a firearm by a felon. (3:15-cr-264, Doc. No. 6). Petitioner pled guilty to Count (1) in exchange for the Government's dismissal of the remaining counts. (3:15-cr-264, Doc. Nos. 15, 16). The plea agreement sets forth Petitioner's sentencing exposure and acknowledges that a Presentence Investigation Report (“PSR”) will be completed to calculate the advisory guideline range, and that the ultimate sentencing determination is within the Court's sole discretion. (3:15-cr-264, Doc. No. 16 at 1-2). Petitioner stipulated that the information contained in an Information filed by the Government pursuant to 21 U.S.C. § 851 was “accurate and valid” and thus the mandatory statutory sentence was not less than 10 years and not more than life imprisonment. (3:15-cr-264, Doc. No. 16 at 2); see (3:15-cr-264, Doc. No. 7). The Government agreed to withdraw the § 851 Information if Petitioner complied with the plea agreement and was found to be a career offender, which would reduce his sentencing exposure to no less than five years and no more than 40 years of imprisonment. (3:15-cr-264, Doc. No. 16 at 2). The parties agreed to jointly recommend, inter alia, that “[t]he amount of a mixture and substance containing a detectable amount of marijuana that was known or reasonably foreseeable by [Petitioner] was at least one hundred (100) kilograms but less than four hundred (400) kilograms….” (3:15-cr-264, Doc. No. 16 at 2-3). Petitioner may not withdraw his guilty plea, expressly waives his rights to be tried by a jury, assisted by counsel at trial, confront and cross-examine witnesses, and not be compelled to incriminate himself. (3:15-cr-264, Doc. No. 16 at 5). Petitioner waived all rights to appeal or collaterally attack his conviction and sentence except with regards to claims of ineffective assistance of counsel or prosecutorial misconduct. (3:15-cr-264, Doc. No. 16 at 5).

         The written factual proffer in support of the plea agreement states in part:

On November 12, 2015, a confidential source of information identified a particular female passenger flying into the Charlotte-Douglas International Airport on a particular flight as a “high risk passenger.”
The law enforcement team observed the female retrieve her luggage, exit the airport, meet with a vehicle, and place the luggage into the trunk. Members of the law enforcement team approached the vehicle. One of the … agents asked the driver to exit the vehicle. The driver (later identified as Defendant Sean Maurice ROBINSON) delayed complying with the agent's requests, was bending forward, and appeared to be fumbling around the floor board/front seat area. As the agent tried to get ROBINSON out of the vehicle, a firearm fell out and landed on the pavement. The agents took ROBINSON into custody. The agents also seized the luggage, which had a strong odor of fresh marijuana, and discovered it contained approximately 15 pounds.
Defendant ROBINSON waived his Miranda rights and provided a confession to the law enforcement team. He claimed responsibility for the marijuana in the luggage, as well as the firearm, which he claimed to have purchased for $100 from a crack addict. ROBINSON admitted that he has previously been involved in 25 trips, which would total well in excess of 100 kilograms.

(3:15-cr-264, Doc. No. 15 at 1-2) (emphasis added).

         Petitioner stated under oath at a Rule 11 hearing that he received a copy of the indictment and discussed it with counsel; he understood the charges against him including the sentencing consequences; he had spoken to counsel about how the U.S. Sentencing Guidelines might apply in his case; he may receive a sentence that is higher or lower than called for by the Guidelines; a sentence more severe than he expects does not give him the right to withdraw his plea; he has the right to plead not guilty and proceed to a speedy jury trial at which he can call and confront witnesses; he would be entitled to the assistance of a lawyer, would be presumed innocent, and would not be required to testify. (3:15-cr-264, Doc. No. 17 at 1-2). He is, in fact, guilty of the count in the indictment to which he was pleading guilty. (3:15-cr-264, Doc. No. 17 at 2). He confirmed that he was waiving his appellate and collateral rights. (3:15-cr-264, Doc. No. 17 at 2). The plea was freely and voluntarily entered and was not the product of promises, threats, intimidation, or force. (3:15-cr-264, Doc. No. 17 at 2-3). Petitioner was satisfied with counsel's services, still wanted to plead guilty, and had no questions or statements. (3:15-cr-264, Doc. No. 17 at 3-4).

         The PSR calculated the base offense level as 24 because the § 841 offense involved at least 100 kilograms but less than 400 kilograms of marijuana. (3:15-cr-264, Doc. No. 23 at ¶ 23). Two levels were added for possession of a dangerous weapon including a firearm. (PSR ¶ 24). This resulted in an adjusted offense level of 26. (3:15-cr-264, Doc. No. 23 at ¶ 28). However, Petitioner qualifies as a career offender so the offense level is 37. (3:15-cr-264, Doc. No. 23 at ¶ 29). Three levels were deducted for acceptance of responsibility resulting in a total offense level of 34. (3:15-cr-264, Doc. No. 23 at ¶¶ 29-32). Petitioner had nine criminal history points and a criminal history category of IV, however, the criminal history category for career offenders is VI. (3:15-cr-264, Doc. No. 23 at ¶ 44, 45). The resulting advisory range was 262 to 327 months' imprisonment. (3:15-cr-264, Doc. No. 23 at ¶ 75).

         The Government withdrew the § 851 Information prior to sentencing in accordance with the plea agreement. (3:15-cr-264, Doc. No. 25). This reduced the statutory maximum penalty to 40 years, the total offense level became 31, and the amended advisory guideline range was 188 to 235 months' imprisonment. (3:15-cr-264, Doc. No. 27).

         In an order docketed on November 15, 2016, the Court adjudicated Petitioner guilty of Count (1) and sentenced him to 204 months' imprisonment followed by four years of supervised release. (3:15-cr-264, Doc. No. 26). Petitioner did not appeal.

         Petitioner timely filed the instant § 2255 Motion to Vacate on March 7, 2017, (Doc. No. 1), alleging a number of errors regarding his conviction and sentence that trial counsel may have been ineffective for failing to raise. The Government filed a Response arguing that Petitioner's claims are procedurally defaulted and conclusively refuted by the record. (Doc. No. 6). Petitioner filed a “Consolidated Motion and Reply, ” (Doc. No. 7), [1] that is construed as a motion to amend, in which he additionally argues that he is actually innocent of Count (1) and that counsel's ineffectiveness rendered the guilty plea involuntary.

         II. PROCEDURAL DEFAULT

         “Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614, 621 (1998) (internal citations omitted); United States v. Sanders, 247 F.3d 139, 144 (4th Cir. 2001). In order to collaterally attack a conviction or sentence based upon errors that could have been but were not pursued on direct appeal, a petitioner must show cause and actual prejudice resulting from the errors of which he complains or he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack. See United States v. Frady, 456 U.S. 152, 167-68 (1982); United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999); United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir. 1994). To establish cause based upon ineffective assistance of counsel, a petitioner must show that the attorney's performance fell below an objective standard of reasonableness and that he suffered prejudice as a result. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Strickland v. Washington, 466 U.S. 668, 687 (1984). A meritorious claim of ineffective assistance of counsel can establish cause to excuse procedural default. See generally Murray, 477 U.S. at 488 (stating that the Strickland standard applies when a petitioner alleges ineffective assistance of counsel as cause to excuse procedural default). Actual prejudice is shown by demonstrating that the error worked to petitioner's “actual and substantial disadvantage, ” rather than just creating a possibility of prejudice. See Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997) (quoting Murray, 477 U.S. at 494). In order to demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack, a petitioner must show actual innocence by clear and convincing evidence. See Murray, 477 U.S. at 496.

         Liberally construing the pro se pleadings, Petitioner appears to argue that counsel's ineffective assistance satisfies the cause and prejudice standard, and by asserting his ...


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