United States District Court, E.D. North Carolina, Western Division
C. DEVER, CHIEF UNITED STATES DISTRICT JUDGE
March 20, 2017, Glenn Sylvester Jackson ("Jackson")
moved under 28 U.S.C. § 2255 to vacate, set aside, or
correct his 84-month sentence [D.E. 69]. On May 26, 2017, the
government moved to dismiss Jackson's section 2255 motion
[D.E. 73] and filed a supporting memorandum [D.E. 74]. As
explained below, the court grants the government's motion
to dismiss Jackson's section 2255 motion, and dismisses
Jackson's section 2255 motion.
17, 2014, pursuant to a written plea agreement, Jackson
pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924 [D.E.
37, 39]. On November 10, 2014, at Jackson's sentencing
hearing, the court calculated Jackson's advisory
guideline range to be 70 to 87 months' imprisonment based
on a total offence level of 21 and a criminal history
category of V. See Sentencing Tr. [D.E. 59] 1-6. After
considering all relevant factors under 18 U.S.C. §
3553(a), the court sentenced Jackson to 84 months'
imprisonment and directed that Jackson's federal sentence
run consecutively to any prison sentence that Jackson was
serving. See id, at 18-23; [D.E. 53].
appealed. On November 5, 2015, the United States Court of
Appeals for the Fourth Circuit enforced the appellate waiver
in Jackson's plea agreement and dismissed the appeal
[D.E. 64]. On March 21, 2016, the Supreme Court of the United
States denied Jackson's petition for certiorari. See
Jackson v. United States. 136 S.Ct. 1474 (2016).
Jackson's section 2255 motion, Jackson makes two claims:
(1) ineffective assistance of trial counsel for failing to
challenge Jackson's base offence level, and (2)
ineffective assistance of appellate counsel for failing to
challenge his sentence based on Johnson v. United
States. 135 S.Ct. 2551 (2013). See [D.E. 69]. On May 26,
2017, the government moved to dismiss the motion for failure
to state a claim upon which relief can be granted. See [D.E.
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, 562-63, 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); 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).
Jackson's ineffective assistance of counsel claims,
"[t]he 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, including plea negotiations, trial, sentencing,
and appeal. See, e.g., Missouri v. Frye. 566 U.S.
134, 141, 143 (2012); Lafler v. Cooper, 566 U.S.
156, 165 (2012); Glover v. United States. 531 U.S.
198, 203-04 (2001). "[Sentencing 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. 531 U.S.
at 203-04. To state a claim of ineffective assistance of
counsel in violation of the Sixth Amendment, Jackson 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 691-95. 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, 1967-69(2017).
Jackson's claim that trial counsel was ineffective by
failing to argue that his conviction for sex offense in a
parental role is not a crime of violence, the offense
requires physical contact of a sexual nature with a minor
victim by someone who has assumed the position of a parent.
See N.C. Gen. Stat. § 14-27.7(a)(2007); N.C. Gen. Stat.
§ 14-27.1(4)(2006). The offense appears to be a crime of
violence under the Guidelines. See U.S.S.G. § 4B1.2(a);
U.S.S.G. § 4B1.2, Application Note 1 (defining
"crime of violence" and "forcible sex
offense"); cf United States v. Vann, 660 F.3d
771, 773-77 (4th Cir. 2011) (per curiam) (en banc). This
court, however, need not reach the issue. Rather, this
court's alternative variant sentence defeats any claim of
prejudice concerning the advisory guideline calculation. See
Sentencing Tr. at 22; 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). Thus, the claim fails.
Jackson's Johnson claim, appellate counsel was
not ineffective. Simply put, Johnson does not apply
to the advisory guidelines. See, e.g.. Beckles
v. United States. 137 S.Ct. 886, 895-97 (2017);
United States v. Mack. 855 F.3d 581, 584-85 (4th
Cir. 2017); United States v. Lee. 855 F.3d 244,
246-47 (4th Cir. 2017). The failure to make a baseless
argument is not deficient performance. See Knowles v.
Mirazavance, 556 U.S. 111, 127-28 (2009).
reviewing the claims presented in Jackson's motion, the
court finds that reasonable jurists would not find the
court's treatment of Jackson's claims debatable or
wrong and that the claims do not deserve encouragement to
proceed any further. Accordingly, the court denies a
certificate of appealability. See 28 U.S.C. § 2253(c);
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel. 529 U.S. 473, 484 (2000).
the court GRANTS the government's motion to dismiss [D.E.
73], DISMISSES Jackson's section 2255 motion [D.E. 69],
DENIES a certificate of appealability, and DENIES