United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE United States District Judge
matter is before the court on petitioner's motions to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 (DE 187, 194). Also before the court is the
motion to dismiss (DE 205) filed by respondent the United
States of America, which was fully briefed. For the reasons
that follow, the court grants respondent's motion to
dismiss, in part, and denies it, in part.
OF THE CASE
30, 2014, a jury found petitioner guilty of several charges
related to drug and money laundering conspiracies. On July
15, 2015, United States District Court Judge James C. Fox
sentenced petitioner to life imprisonment. (See (DE
162)). Petitioner subsequently appealed his conviction and
raised the following grounds for relief: (1) the sentence was
procedurally and substantively unreasonable; (2) error in the
drug weight calculation; (3) the district court improperly
limited the scope of his cross-examination of a
coconspirator; and (4) juror misconduct. United States v.
Pressley, 654 Fed.Appx. 591 (4th Cir. 2016). On July 6,
2016, the Fourth Circuit Court of Appeals affirmed the
district court's judgment. Id. On July 10, 2017,
the action was re-assigned to the undersigned for all further
28, 2017, petitioner filed his first motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. In his motion, petitioner alleged the following
ineffective assistance of counsel claims: (1) failure to move
to suppress a statement given to police prior to
petitioner's arrest; (2) failure to move to suppress the
indictment for containing duplicative charges; (3) failure to
object to the reasonable doubt jury instructions; (4) failure
to request a jury instruction on the informant's role;
(5) failure to present evidence challenging the money
laundering conspiracy; and (6) failure of appellate counsel
to raise certain issues on appeal. (DE 187).
August 2, 2017, petitioner filed a motion for a new trial
pursuant to Federal Rule of Criminal Procedure 33, which was
fully briefed. On September 5, 2017, petitioner filed a
second § 2255 motion, which was nearly identical to
petitioner's original § 2255 motion. On the same
date, petitioner filed a motion to amend his § 2255
motion to include the following new claims: his actions did
not constitute federal offenses; the court lacked
jurisdiction over the matter; and several ineffective
assistance of counsel claims. ((DE 195-1) pp. 1-4). On
September 18, 2017, respondent moved to dismiss
petitioner's § 2255 motions for failure to state a
claim. The motion was fully briefed.
November 7, 2017, petitioner filed a second motion to amend
to include the following claims: (1) defense counsel failed
to seek a mistrial following comments made during closing
arguments; and (2) failure of the government to provide
pre-trial notice of benefits paid to a witness. ((DE 203),
pp. 2-5). On December 9, 2017, the court issued an order
denying petitioner's motion for a new trial pursuant to
Rule 33, granting petitioner's motions to amend, and
denying as moot respondent's motion to dismiss in light
of the new claims petitioner asserted in his motions to
amend. On December 28, 2017, respondent filed a second motion
to dismiss, arguing that petitioner fails to state a claim
upon which relief may be granted. The motion was fully
Standard of Review
motion to dismiss under Rule 12(b)(6) for "failure to
state a claim upon which relief can be granted" tests
whether the complaint is legally and factually sufficient.
See Fed. R. Civ. P. 12(b)(6); Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007); Coleman v. Md.
Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010),
affd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008); accord Erickson v.
Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). In
considering a motion to dismiss, a court need not accept a
complaint's legal conclusions drawn from the facts.
See, e.g.. Iqbal. 556 U.S. at 678. A court
also "need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments."
Giarratano, 521 F.3d at 302 (quotation omitted); see
Iqbal. 556 U.S. at 678-79.
court begins with petitioner's claims that this court did
not have jurisdiction over his trial, his actions did not
constitute federal offenses, and that the government failed
to provide a pretrial notice of benefits paid to a witness.
Petitioner failed to bring these claimed errors to the
attention of the Fourth Circuit on direct appeal. As a
result, he has procedurally defaulted these claims. See,
e.g.. Bousley v. United States, 523 U.S. 614.621 H998):
United States v. Mikalajunas, 186 F.3d 490, 492-93
(4th Cir. 1999); see also Scantlebury v. United
States, Nos. 5:09-CR-254-D, 5:10-CV-590-D, 2012 WL
5364004, at *4 (E.D. N.C. Oct. 30, 2012) ("[B]ecause
Scantlebury did not seek to assert his claim of actual
innocence on direct appeal, he is procedurally barred from
doing so now.") (citation omitted)! Petitioner has not
plausibly alleged "cause" and "prejudice,
" which are necessary to excuse procedural default.
See Massaro v. United States, 538 U.S. 500, 504
(2003); Bousley, 523 U.S. at622;
Mikalajunas, 186 F.3dat493. Finally,
petitioner's conclusory allegations of actual innocence
are insufficient to excuse his procedural default. See
Singleton v. Ozmint, No. 4:09-753-JFA-TER, 2010 WL
1409439, at *7 (D.S.C. Mar. 31, 2010) (citing Royal v.
Taylor, 188 F.3d 239, 244 (4th Cir. 1999)), appeal
dismissed. 447 Fed.Appx. 431 (4th Cir. Mar. 2, 2011).
Thus, respondent's motion to dismiss is GRANTED as to
court next turns to petitioner's ineffective assistance
of trial and appellate counsel claims. Generally, a claim of
ineffective assistance of counsel is resolved by application
of the widely accepted two-part analysis announced in
Strickland v. Washington, 466 U.S. 668 (1984).
First, petitioner must demonstrate that his counsel's
acts or omissions fell outside the range of reasonably
competent assistance. Id. at 690. "Judicial
scrutiny of counsel's performance must be highly
deferential, and a reviewing court must avoid the biases of
hindsight." Sharpe v. Bell. 593 F.3d 372, 382
(4th Cir. 2010) (internal quotation omitted). If the
petitioner establishes that his counsel's performance
fell outside the acceptable range, he must then satisfy
Strickland's second prong by showing a
"reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at
motion to dismiss, respondent makes the conclusory argument
that petitioner failed to make a single description of
attorney conduct that falls outside of the wide range of
reasonable professional assistance. Respondent also makes the
conclusory argument that petitioner's counsel made
strategic decisions which did not rise to the level of
constitutional deficiency. In light of petitioner's
detailed memoranda supporting his § 2255 motions, the
court cannot make a determination as to petitioner's
ineffective assistance of counsel claims on this record.
Accordingly, respondent's motion to dismiss is DENIED as
to petitioner's ineffective assistance of counsel claims.
Respondent is DIRECTED to file a motion for summary judgment
within 60 days of this court's order. Respondent further
is DIRECTED to specifically address each of petitioner's
ineffective assistance of counsel claims individually with
citations to specific pages in the exhibits, or otherwise in
the record, which demonstrate the absence of a genuine ...