United States District Court, E.D. North Carolina, Eastern Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on petitioner's motion to
vacate under 28 U.S.C. § 2255, (DE 33, 37), and the
government's motion to dismiss, (DE 39). Pursuant to 28
U.S.C. § 636(b)(1)(B), United States Magistrate James E.
Gates, held an evidentiary hearing and entered a memorandum
and recommendation (“M&R”), (DE 65), wherein
it is recommended that the court deny petitioner's motion
and grant respondent's motion. Petitioner timely filed
objections to the M&R, and in this posture, the issues
raised are ripe for ruling. For the reasons that follow, the
court adopts the recommendation of the M&R, denies
petitioner's motion, and grants respondent's motion.
pleaded guilty, without a plea agreement, on October 16,
2014, to the following charges in a four-count indictment: 1)
distribution of a quantity of cocaine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C) (counts 1-3); and 2)
possession with intent to distribute a quantity of cocaine
and aiding and abetting, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C) (count 4). In presentence report
filed December 22, 2014, the United States Probation Office
calculated an advisory guidelines range of 151 to 188 months
based upon petitioner's status as a career offender.
presentence report identified two predicate violent crime
convictions applicable to petitioner's career offender
status, for discharge of a weapon into an occupied property
in Pitt County Superior Court, in Greenville, North Carolina.
(Presentence report (DE 21) ¶¶ 14, 19). Petitioner
did not lodge any objections to the advisory guidelines
calculation in the presentence report, but rather objected to
the suggestion therein that the court may wish to consider an
upward departure for dismissed or uncharged conduct.
Petitioner also filed a sentencing memorandum, arguing that a
sentence at the bottom of the advisory guidelines range was
court sentenced petitioner on January 6, 2015, to a term of
imprisonment of 188 months on each count to be served
concurrently. Petitioner filed the instant motion to vacate
on June 15, 2015, as corrected on June 29, 2015, asserting
the following claims:
1) The court erroneously applied the career offender
2) Ineffective assistance of counsel in failing to object to
the career offender enhancement; failing to file an appeal as
requested; and failing to consult with petitioner about the
applicability of the career offender enhancement.
government filed the instant motion to dismiss on August 6,
2015, arguing that petitioner's first claim and part of
petitioner's second claim should be dismissed as a matter
of law; and that the remaining part of petitioner's
second claim regarding filing of an appeal should proceed to
evidentiary hearing for resolution of disputed issues of
magistrate judge set the matter for evidentiary hearing on
1) Whether trial counsel failed to file an appeal at
petitioner's request; and
2) Whether petitioner requested counsel to consult with
petitioner about and challenge the career offender
enhancement pursuant to United States Sentencing Guidelines
§ 4B1.1 that was ultimately applied by the court in
determining his sentence.
hearing and supplemental briefing, the magistrate judge
entered M&R recommending that petitioner's first
claim should be dismissed, and recommending that
petitioner's second claim should be denied on the merits,
on the basis of findings of fact and determinations of law
set forth in the M&R. Petitioner, ...