United States District Court, E.D. North Carolina, Western Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE.
February 2, 2018, Terrance Lamar Carr ("Carr")
moved under 28 U.S.C. § 2255 to vacate, set aside, or
correct his 204-month sentence [D.E. 56]. On February 20,
2018, Carr moved to amend his section 2255 motion [D.E. 61].
On April 3, 2018, the government moved to dismiss Carr's
section 2255 motion for failure to state a claim upon which
relief can be granted [D.E. 63] and filed a memorandum in
support [D.E. 64], On April 30, 2018, Carr replied [D.E. 66].
As explained below, the court grants Carr's motion to
amend, grants the government's motion to dismiss, and
dismisses Carr's amended motion.
2, 2015, pursuant to a written plea agreement, Carr pleaded
guilty to conspiracy to distribute and possession with intent
to distribute 280 grams or more of cocain base (crack) (count
one), and to possession of a firearm in furtherance of a drug
trafficking crime (count three) [D.E. 20, 21, 44]. On October
29, 2015, the court sentenced Carr [D.E. 31, 33, 45].
Carr's advisory guideline range on count one was 135 to
168 months' imprisonment, and on count three was 60
months' consecutive imprisonment. See [D.E. 45] 4-6.
After thoroughly considering all relevant factors under 18
U.S.C. § 3553(a), the court sentenced Carr to 144
months' imprisonment on count one, and 60 months'
consecutive imprisonment on count three. See Sentencing Tr.
at 20-28. Carr appealed. On November 8, 2016, the United
States Court of Appeals for the Fourth Circuit affirmed this
court's judgment. See United States v. Carr. 665
Fed.Appx. 245, 246-47 (4th Cir. 2016) (per curiam)
Carr's amended section 2255 motion, Carr claims
ineffective assistance of counsel because (1) counsel failed
to advise Carr that the charged conspiracy actually consisted
of multiple, separate conspiracies; (2) counsel failed to
challenge count one as duplicitous; and (3) counsel failed to
discover that the firearm that formed the basis of count
three was brought to Carr's grandmother's residence
where it was found after the residence had been burglarized.
See [D.E. 56] 4-7. The government moves to dismiss the
amended motion for failure to state a claim upon which relief
can be granted. See [D.E. 63]; [D.E. 64] 3-6.
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), aff'd,
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 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).
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, eg.,
Missouri v. Frve. 566 U.S. 134, 141 (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. Breckenridee. 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, Carr 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, 687-96
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. To
prove prejudice, a party must show that there is a
"reasonable probability" that, but for the
deficiency, "the j 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 citations
claims that his trial counsel was ineffective for failing to
(1) advise Carr that the charged conspiracy actually
consisted of multiple, separate conspiracies; (2) challenge
count one as duplicitous; and (3) discover that the firearm
that formed the basis of count three was brought to
Carr's grandmother's residence where it was found
after the residence had been burglarized. See [D.E. 56] 4-7.
Carr's Rule 11 proceeding, Carr swore that he understood
the two charges to which he was pleading guilty. See Rule 11
Tr. [D.E. 44] 4-23, 28-29. Carr swore that he was fully
satisfied with his lawyer's legal services. Id.
at 17-18. Carr also swore that he had reviewed and discussed
his entire plea agreement with counsel before he signed it,
that he understood each term in the plea agreement, and that
the plea agreement constituted the entire agreement that he
had with the government. See Id. at 26-29. In the
plea agreement, Carr agreed:
That the Court will take into account, but is not bound by
the applicable United States Sentencing Guidelines, that the
sentence has not yet been determined by the Court, that any
estimate of the sentence received from any source is not a
promise, and that even if a sentence up to the statutory
maximum is imposed, the Defendant may not withdraw the plea
Agreement [D.E. 21] ¶ 3(c). Carr also swore that he
understood that the court could sentence him up to the
statutory maximum on count one and count three, and that if
the court did so, Carr could not withdraw his guilty plea.
See Rule 11 Tr. at 28-29.
sworn statements at his Rule 11 proceeding bind him. See, e,
g., Blackledge, 431 U.S. at 74; United States v.
Moussaoui 591 F.3d 263, 299-300 (4th Cir. 2010);
United States v. LeMaster. 403 F.3d 216, 221-23 (4th
Cir. 2005). Those sworn statements show that Carr admitted to
the conspiracy as charged in count one and to possessing the
firearm in furtherance of a drug trafficking crime as charged
in count three. See Rule 11 Tr. at 21-23, 30-32. Carr's
sworn statements also show that Carr understood that, even if
he received a statutory-maximum sentence on each count, he
could not withdraw his guilty plea and would not be able to
go to trial. See Id. at 28-29. As such, Carr has not
plausibly alleged "that, but for counsel's [alleged]
unprofessional error, the result of the proceeding would
have been different." Strickland. 466 U.S. at
694; see Lee. 137 S.Ct. at 1967-69; Hill, 474 U.S.
at 59; Fields v. Attorney Gen, of Md.. 956 F.2d
1290, 1297 (4th Cir. 1992). Simply put, even if Carr's
counsel raised these three issues, Carr would not have
"insisted on going to trial."Hill, 474 U.S. at 59;
see Lee, 137 S.Ct. at 1967-69; Strickland. 466 U.S.
at 694; Rule 11 Tr. at 28-29. Thus, the claims fail.
the claims fail as to performance. Defense counsel's
investigation was adequate and falls within the wide range of
professional performance. See, e.g.,
Strickland, 466 U.S. at 687-94. Carr admitted to the
charged conspiracy and firearm charge, and a factual basis
existed for the guilty plea. See Rule 11 Tr. at 21-23, 30-37;
Presentence Investigation Report [D.E. 27] ¶¶
11-22; see also United States v. Gomez- Jimenez. 750
F.3d 370, 378-79 (4th Cir. 2014); United States v.
Perry. 560 F.3d 246, 254 (4th ...