United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
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).
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).
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
(3:15-cr-264, Doc. No. 15 at 1-2) (emphasis added).
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
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 ¶
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).
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
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),  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.
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.
construing the pro se pleadings, Petitioner appears
to argue that counsel's ineffective assistance satisfies
the cause and prejudice standard, and by asserting his ...