United States District Court, W.D. North Carolina, Asheville Division
Cogburn Jr., United States District Judge.
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1).
October 6, 2015, Petitioner was indicted in the underlying
criminal case with: Counts (1) and (4), attempted Hobbs Act
robbery; Count (2), using fire and an explosive to commit a
felony, i.e., Count (1); and Count (3), using,
carrying, and possessing a firearm during and in relation to
a crime of violence, i.e., Count (1). (1:15-cr-95,
Doc. No. 3). He was arraigned on November 2, 2015.
superseding indictment filed on December 1, 2015, added two
co-defendants and three charges. It charged Petitioner with:
Count (1), maliciously damaging and attempting to damage and
destroy, by means of fire and an explosive, a building, and
real and persona property used in and affective interstate
and foreign commerce and aiding and abetting the same; Counts
(2) and (6), attempted Hobbs Act robbery; Count (3) using a
fire and an explosive to commit a felony, i.e.,
Counts (1) and (2); and Counts (4) and (5), using, carrying,
and possessing a firearm during and in relation to a crime of
violence. (1:15-cr-95, Doc. No. 10). Petitioner signed a
waiver of arraignment on December 2, 2015, the day after the
superseding indictment was filed. (1:15-cr-95, Doc. No. 13).
signed a written plea agreement on January 26, 2016, in which
he agreed to plead guilty to Counts (1)-(3) of the
“Superseding Bill of Indictment” in exchange for
the Government's dismissal of Counts (4)-(6).
(1:15-cr-95, Doc. No. 48). The plea agreement sets forth the
relevant statutes and sentencing exposure as follows: Count
(1), violation of 18 U.S.C. § 844(i); minimum of 5
years, maximum of 20 years; Count (2), violation of 18 U.S.C.
§ 1951; maximum of 20 years; Count (3), violation of 18
U.S.C. § 844(h), 10 years consecutive. (1:15-cr-95, Doc.
No. 48 at 2). The parties' joint recommendations include
the agreement that “the defendant used fire and an
explosive to commit the felonies set forth in both Counts One
and Two and therefore the ten year mandatory sentence will
run consecutively to any sentence imposed in Counts One and
Two.” (1:15-cr-95, Doc. No. 48 at 2). The agreement
states that the sentence has not yet been determined and that
Plaintiff may not withdraw his plea based on the sentence
imposed. (1:15-cr-95, Doc. No. 48 at 2). The agreement
contains an express waiver of Plaintiff's rights to be
tried by a jury, be assisted by an attorney at trial,
confront and cross-examine witnesses, not to be compelled to
incriminate himself. (1:15-cr-95, Doc. No. 48 at 5). There is
also a knowing and voluntary waiver of Plaintiff's
appellate and post-conviction rights except claims of
prosecutorial misconduct and ineffective assistance of
counsel. (1:15-cr-95, Doc. No. 48 at 5). The agreement states
that there are no representations or understandings between
the parties other than those in the plea agreement.
(1:15-cr-95, Doc. No. 48 at 7).
written factual basis that Plaintiff, also signed on January
26, 2016, provides that Plaintiff “unlawfully attempted
to obstruct commerce by robbery … on two
occasions….. [and a]s part of the plan, [Plaintiff]
constructed a pipe bomb and a gasoline bomb to be used as a
diversion for law enforcement.” (1:15-cr-95, Doc. No.
49 at 1). Further, “[o]n January 23, 2015 …
HENDRICKSON admitted to creating the pipe bomb with
[co-defendant] GUNTER….” (1:15-cr-95, Doc. No.
49 at 3).
11 hearing came before Magistrate Judge Howell the next day,
January 27, 2016. (1:15-cr-95, Doc. Nos. 50, 85). Petitioner
was sworn, stated that he understood the case, and agreed
that he wanted to plead guilty to “counts one, two, and
three as contained in the superseding Bill of
Indictment.” (1:15-cr-95, Doc. No. 85 at 4). He
admitted that he received a copy of the indictment and
discussed the contents with his attorney. (1:15-cr-95, Doc.
No. 85 at 5). The charges, maximum penalties, and minimum
sentences were explained on the record. (1:15-cr-95, Doc. No.
85 at 5). He stated that he fully understood the charges
against him - which were read aloud in open court - as well
as his sentencing exposure. (1:15-cr-95, Doc. No. 85 at
5-14). He stated that he had discussed with counsel how the
advisory guidelines might apply to his case, understood his
sentencing exposure, and acknowledged that he may receive a
sentence that is different than that called for by the
guidelines. (1:15-cr-95, Doc. No. 85 at 14-16). He understood
he has the right to plead not guilty, have a speedy trial
before a judge and jury, to summons witnesses to testify, and
to confront witnesses against him, that he would receive the
assistance of a lawyer, would not be required to testify,
would be presumed innocent, and the burden would be on the
government. (1:15-cr-95, Doc. No. 85 at 15-17). He agreed to
waive these rights, understood that there would be no trial
and that there would be more hearing where he would be
sentenced. He admitted that he is guilty of the counts to
which he was pleading guilty. (1:15-cr-95, Doc. No. 85 at
18). He understood the terms of the plea agreement and agrees
to them including the appellate and post-conviction waiver.
(1:15-cr-95, Doc. No. 85 at 19-20). He read the factual basis
for the plea, understood it, and agreed with it. (1:15-cr-95,
Doc. No. 85 at 20-21). Nobody threatened him, intimidated
him, or forced him to plead guilty, nor had he received any
promises of leniency or a light sentence to induce his plea.
(1:15-cr-95, Doc. No. 85 at 21). He had enough time to
discuss any possible defenses with counsel, was satisfied
with the services of counsel, and had nothing to say about
counsel's services. (1:15-cr-95, Doc. No. 85 at 21).
Judgment filed on May 9, 2016, the Court adjudicated
Petitioner guilty of Counts (1)-(3) of the superseding
indictment and sentenced him to 60 months' imprisonment
as to Counts (1) and (2), concurrent, and ten years as to
Count (3), consecutive, for a total of 180 months'
imprisonment, followed by three years of supervised release.
(1:15-cr-95, Doc. No. 71).
timely filed the instant § 2255 Motion to Vacate on May
2, 2017. (Doc. No. 1). He argues that (1) ineffective
assistance of counsel rendered the guilty plea involuntary;
and (2) failure to arraign him on the superseding indictment
violated due process. The Government filed a Response arguing
that the claim of ineffective assistance of counsel is
refuted by the record and that the due process claim is
waived, procedurally defaulted, and meritless. (Doc. No. 5).
Petitioner filed a letter that was docketed as a Motion to
Amend, (Doc. No. 6), which is construed as a Reply. He argues
that, had counsel performed effectively, he would have been
arraigned on the superseding indictment which would have led
him to accept a more favorable plea deal or go to trial.
SECTION 2255 STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a).
Sixth Amendment to the U.S. Constitution guarantees that in
all criminal prosecutions, the accused has the right to the
assistance of counsel for his defense. See U.S.
Const. Amend. VI. To show ineffective assistance of counsel,
Petitioner must first establish deficient performance by
counsel and, second, that the deficient performance
prejudiced him. See Strickland v. Washington, 466
U.S. 668, 687-88 (1984). The deficiency prong turns on
whether “counsel's representation fell below an
objective standard of reasonableness ... under prevailing
professional norms.” Id. at 688. A reviewing
court “must apply a ‘strong presumption' that
counsel's representation was within the ‘wide
range' of reasonable professional assistance.”
Harrington v. Richter, 562 U.S. 86, 104 (2011)
(quoting Strickland, 466 U.S. at 689).
right to the assistance of counsel during criminal
proceedings extends to the plea-bargaining process. See
Missouri v. Frye,566 U.S. 134 (2012). Thus, criminal
defendants are “entitled to the effective assistance of
competent counsel” during that process. Lafler v.
Cooper,566 U.S. 156, 162 (2012) (internal quotation
marks omitted); Merzbacher v. Shearin, 706 F.3d 356,
363 (4th Cir. 2013). Where a defendant enters his
plea upon the advice of counsel, the voluntariness of the
plea depends on whether counsel's advice was
“within the range of competence demanded by attorneys
in criminal cases.” Hill v. Lockhart, 474 U.S.
52, 56 (1985) (quoting McMann v. Richardson, 397
U.S. 759, 771 (1970)). To satisfy Strickland's
prejudice prong, the defendant must show “there is a