United States District Court, E.D. North Carolina, Western Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE
January 30, 2017, Tirreil Mario Maynor ("Maynor")
moved under 28 U.S.C. § 2255 to vacate, set aside, or
correct his 96-month sentence [D.E. 38]. On April 6, 2017,
the government moved to dismiss Maynor's section 2255
motions for failure to state a claim [D.E. 42] and filed a
memorandum in support [D.E. 43]. As explained below, the
court grants the government's motion to dismiss, and
dismisses Maynor's section 2255 motion.
October 29, 2015, Maynor pleaded guilty to possession of a
firearm by a felon in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2). See [D.E. 21]. On March 8, 2016,
this court held Maynor's sentencing hearing. See [D.E.
33]. The court calculated Maynor's advisory guideline
range to be 92 to 115 months' imprisonment. See [D.E. 35,
36]. After considering the arguments of counsel and all
relevant factors under 18 U.S.C. § 3553(a), the court
sentenced Maynor to 96 months' imprisonment [D.E. 35,
36]. Maynor did not appeal.
January 30, 2017, Maynor filed his section 2255 motion [D.E.
38]. Maynor contends that (1) the trial court lacked
subject-matter jurisdiction because North Carolina
authorities unlawfully held Maynor in state custody on state
charges for ten months before a federal grand jury in the
Eastern District of North Carolina indicted Maynor and
charged Maynor with being a felon in possession of a firearm;
(2) the trial court lacked subject-matter jurisdiction
because the United States failed to specify the predicate
prior felony conviction in the indictment; and (3)
ineffective assistance of trial counsel by failing to object
to the robbery cross reference under U.S.S.G. § 2B3.1
and thereby increasing Maynor's advisory guideline range.
See [D.E. 38] 1-7. On April 6, 2017, the government moved to
dismiss Maynor's motion for failure to state a claim upon
which relief can be granted. See [D.E. 42].
government may challenge the legal sufficiency of a section
22SS petition through a motion to dismiss under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. See Rule 12, Rules
Governing Section 2255 Proceedings; United States v.
Frady, 456 U.S. 152, 166-68 n.15 (1982); United
States v. Reckmeyer, 900 F.2d 257, at *4 (4th Cir. 1990)
(unpublished table decision). A motion to dismiss under Rule
12(b)(6) for "failure to state a claim upon which relief
can be granted" tests the claims' legal and factual
sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009); Bell Afl. 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 petition'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. The court, however,
"accepts all well-pled facts as true and construes these
facts in the light most favorable to the plaintiff in
weighing the legal sufficiency" of the petition.
Nemet Chevrolet Ltd. v. Consumeraffairs.com. Inc.,
591 F.3d 250, 255 (4th Cir. 2009). Construing the facts in
this manner, the petition must contain "sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face." Id. (quotation
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., Blackledge v. Allison, 431 U.S. 63,
74 n.4 (1977); United States v. Dvess, 730 F.3d 354,
359-60 (4th Cir. 2013).
Maynor's first two claims, Maynor failed to raise these
claims on direct appeal. Thus, procedural default bars Maynor
from presenting these claims under section 2255.
See, e.g.. Massaro v. United States. 538
U.S. 500, 504 (2003); Bousley v. United States, 523
U.S. 614, 621 (1998); United States v. Fugit, 703
F.3d 248, 253 (4th Cir. 2012); United States v.
Sanders, 247 F.3d 139, 144 (4th Cir. 2001); Spence
v. United States, No. 2:11-CR-4-D, 2:15-CV-45-D, 2017 WL
385770, at *2 (E.D. N.C. Jan. 25, 2017) (unpublished).
Furthermore, Maynor has not plausibly alleged "actual
innocence" or "cause and prejudice" resulting
from these alleged errors. See Bousley, 523 U.S. at
622-24; Frady, 456 U.S. at 170; United States v.
Pettiford, 612 F.3d 270, 280-S5 (4th Cir. 2010);
United States v. Mikalajunas, 186 F.3d 490, 493-95
(4th Cir. 1999). Accordingly, these claims fail.
these two claims fail because Maynor pleaded guilty to the
federal charge, and the alleged errors do not affect
subject-matter jurisdiction. See, e.g..
Tollett v. Henderson, 411 U.S. 258, 266-67 (1973);
United States v. Cherry, 720 F.3d 161, 166 (4th Cir.
2013); United States v. Willis, 992 F.2d 489, 490
(4th Cir. 1993); cf Class v. United States, 138
S.Ct. 798, 803-07 (2018).
the claims fails because North Carolina had the right to
charge Maynor in state court and to detain him. Whatever
delay occurred in the state proceeding does not affect the
later federal proceeding. Moreover, the United States, as a
separate sovereign, had the right to charge Maynor in federal
court for conduct arising from the same criminal activities.
See, e.g., Bartkus v. Illinois,
359 U.S. 121, 132-39 (1959). Furthermore, Maynor's
indictment did not need to specify the felony conviction to
put Maynor on notice of the felon-in-possession charge
against him. See. e.g., United States v.
Miller, 471 U.S. 130, 135-45 (1985); Hamling v.
United States, 418 U.S. 87, 117-19 (1974); United
States v. Cobb, 905 F.2d 784, 790-91 (4th Cir. 1990);
United States v. Am. Waste Fibers, 809 F.2d 10467
(4th Cir. 1987) (per curiam).
remaining claim alleges ineffective assistance of trial
counsel. "The 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, 140 (2012); Lafter v. Cooper, 566 U.S.
156, 164-65 (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, Maynor 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,
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
contends that trial counsel was ineffective by failing to
object the robbery cross reference under U.S.S.G. §
2B3.1 and thereby increasing Maynor's advisory guideline
range. Maynor, however, committed a robbery and discharged a
firearm while possessing the firearm after sustaining a
felony conviction. See PSR [D.E.25] ¶¶4-8, 14.
Thus, any objection would have been baseless. The failure to
make a baseless objection is not deficient performance. See
Knowles v. Mirazavance, 556 U.S. 111, 127-28 (2009).
Accordingly, the claim fails.
this court's alternative sentence defeats any prejudice
claim concerning the advisory guideline range. See United
States v. Gomez-Jimenez,750 F.3d 370, 382-86 (4th Cir.
20141: United States v. Hargrove, 701 F.3d
156.161-65 [4th Cir. 2012]. Thus, the claim fails. See,