United States District Court, E.D. North Carolina, Southern Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE.
12, 2016, Jermaine Cordova ("Cordova") moved for
placement at a federal medical center [D.E. 113]. On April 5,
2017, Cordova moved pursuant to 28 U.S.C. § 2255 to
vacate, set aside, or correct his 120-month sentence [D.E.
115]. On July 28, 2017, the government moved to dismiss
Cordova's section 2255 motion [D.E. 122] and filed a
memorandum in support [D.E. 123]. On August 22, 2017, Cordova
responded in opposition [D.E. 122]. As explained below, the
court denies Cordova's motion for placement at a federal
medical center, grants the government's motion to
dismiss, and dismisses Cordova's section 2255 motion.
March 26, 2014, Cordova pleaded guilty to possession of a
firearm and ammunition by a felon in violation of 18 U.S.C.
§§ 922(g)(1) and 924 [D.E. 47, 86]. Cordova's
offense conduct involved cornmitting an armed robbery where
the victim was shot five times and later firing his weapon at
a Wilmington police officer. See Sentencing Tr. [D.E. 64]. On
September 4, 2014, the court sentenced Cordova to 420
months' imprisonment [D.E. 75, 76]. Cordova appealed
Cordova's appeal was pending, the Supreme Court of the
United States decided Johnson v. United States. 135
S.Ct. 2551 (2015), which invalidated the residual clause of
the ACCA. As a result of Johnson, Cordova was no
longer an armed career criminal. Thus, on July 16, 2015, the
United States Court of Appeals for the Fourth Circuit granted
the government's unopposed motion to remand the case for
resentencing in light of Johnson. See [D.E. 90].
February 26, 2016, the court resentenced Cordova. See
Resentencing Tr. [D.E. 112]. The court calculated
Cordova's advisory guideline range as 3 60 months to
life, but concluded that, absent the ACCA enhancement, the
advisory guideline range became the statutory maximum of 120
months' imprisonment. See Id. at 1-10. The court
then considered all relevant factors under 18 U.S.C. §
3553(a) and sentenced Cordova to 120 months'
imprisonment. See Id. at 19-27. The court also
announced that if it had miscalculated Cordova's advisory
guideline range, it would impose the same sentence as an
alternative variant sentence. See Id. at 25;
United States v. Gomez-Jimenez. 750 F.3d 370, 382-86
(4th Cir. 2014); United States v. Hargrove. 701 F.3d
156, 161-65 (4th Cir. 2012). Cordova appealed.
April 4, 2017, while Cordova's appeal was pending,
Cordova filed his section 2255 motion [D.E. 115]. In
Cordova's section 2255 motion, Cordova argues that his
appellate counsel from his first sentencing appeal was
constitutionally ineffective by failing to argue that this
court miscalculated his advisory guideline range at the first
sentencing. See Id. at 4. Cordova then contends that
this failure "prevented" Cordova from raising this
issue "under the mandate rule on the second
27, 2017, the Fourth Circuit affirmed this court's
judgment sentencing Cordova to 120 months' imprisonment.
See United States v. Cordova. 692 Fed.Appx. 692, 693
(4th Cir. 2017) (per curiam) (unpublished). In its decision,
the Fourth Circuit declined to apply the mandate rule, and
instead affirmed based on this court's alternative
variant sentence. Id.
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests a complaint's legal and
factual sufficiency. See Ashcroft v. Iqbal. 556 U.S.
662, 677-78 (2009); Bell Atl. Corp. v. Twombly. 550
U.S. 544, 555-63, 570 (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. See,
e.g.. Iqbal. 556 U.S. at 678. Similarly, a
court "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 677-79. Moreover, a court may
take judicial notice of public records without converting a
motion to dismiss into a motion for summary judgment.
See, e.g.. Fed.R.Evid. 201; Tellabs. Inc. v.
Makor Issues & Rights. Ltd.. 551 U.S. 308, 322
(2007); Philips v. Pitt Cty. Mem'l Hosp.. 572
F.3d 176, 180 (4th Cir. 2009). In reviewing a section 2255
motion, the court is not limited to the motion itself. The
court also may consider "the files and records of the
case." 28 U.S.C. § 2255(b); see United States
v. McGill. 11 F.3d 223, 225 (1st Cir. 1993). Likewise, a
court may rely on its own familiarity with the case. See.
e.g., Blackledee v. Allison. 431 U.S. 63, 74
n.4 (1977); United States v. Dyess. 730 F.3d 354,
359-60 (4th Cir. 2013).
Sixth Amendment entitles criminal defendants to the effective
assistance of counsel-that is, representation that does not
fall below an objective standard of reasonableness in light
of prevailing professional norms." Bobby v. Van
Hook. 558 U.S. 4, 7 (2009) (per curiam) (quotations
omitted). The Sixth Amendment right to counsel extends to all
critical stages of a criminal proceeding. See, e.g..
Missouri v. Frye. 566 U.S. 134, 141, 143 (2012);
Lafler v. Cooper. 566 U.S. 156, 165 (2012).
"[S]entencing is a critical stage of trial at which a
defendant is entitled to effective assistance of counsel, and
a sentence imposed without effective assistance must be
vacated and reimposed to permit facts in mitigation of
punishment to be fully and freely developed." United
States v. Breckenridge. 93 F.3d 132, 135 (4th Cir.
1996): see Glover v. United States. 531 U.S. 198,
203-04 (2001). To state a claim of ineffective assistance of
counsel in violation of the Sixth Amendment, Cordova must
show that his attorney's performance fell below an
objective standard of reasonableness and that he suffered
prejudice as a result. See Strickland v. Washington.
466 U.S. 668, 687-91 (1984).
determining whether counsel's representation was
objectively unreasonable, a court must be "highly
deferential" to counsel's performance and must
attempt to "eliminate the distorting effects of
hindsight." Id. at 689. Therefore, the
"court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance." Id. A
party also must show that counsel's deficient performance
prejudiced the party. See Id. at 691-96. A party
does so by showing that there is a "reasonable
probability" that, but for the deficiency, "the
result of the proceeding would have been different."
Id. at 694. When a defendant pleads guilty, "in
order to satisfy the 'prejudice' requirement, the
defendant must show that there is a reasonable probability
that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial."
Hill v. Lockhart. 474 U.S. 52, 59 (1985); see
Lee v. United States. 137 S.Ct. 1958, 1967(2017).
"Surmounting Strickland's high bar is never
an easy task, and the strong societal interest in finality
has special force with respect to convictions based on guilty
pleas." Lee. 137 S.Ct. at 1967 (quotations and
the court need not address performance because Cordova's
ineffective-assistance claim fails due to a lack of
prejudice. Cordova argues that his appellate counsel during
his first sentencing appeal was constitutionally ineffective
by failing to argue that this court miscalculated
Cordova's advisory guideline range. See [D.E. 115] 4.
Cordova then contends that this failure "prevented"
Cordova from raising this issue "under the mandate rule
on the second appeal." Id. However, in
resolving Cordova's second appeal, the Fourth Circuit
declined to apply the mandate rule. See Cordova. 692
Fed.Appx. at 693. Instead, the Fourth Circuit reviewed the
resentencing and affirmed this court's alternative
variant sentence. Id. Accordingly, the conduct of
Cordova's appellate counsel during his first sentencing
appeal did not affect the outcome of Cordova's
resentencing or Cordova's appeal of the resentencing.
Thus, there was no prejudice. See, e.g., Strickland.
466 U.S. at 694-700.
reviewing the claim presented in Cordova's motion, the
court finds that reasonable jurists would not find the
court's treatment of Cordova's claim debatable or
wrong and that none of the claims deserve encouragement to
proceed any further. Accordingly, the court denies a
certificate of appealability. See 28 U.S.C. § 2253(c);