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Wheeler v. United States

United States District Court, W.D. North Carolina, Statesville Division

July 9, 2018



          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1).

         I. BACKGROUND

         In 2006, Petitioner Michael Graylen Wheeler pleaded guilty to possessing cocaine with the intent to distribute and carrying a firearm during and in relation to a drug-trafficking crime. (Crim. Case No. 5:04-cr-66, Doc. No. 33: Judgment). This Court sentenced Petitioner to 152 months of imprisonment, to be followed by five years of supervised release. (Id.). The Fourth Circuit affirmed. United States v. Wheeler, 286 Fed.Appx. 3 (4th Cir. 2008).

         This Court subsequently reduced Petitioner's sentence on the drug count from 92 months to 77 months pursuant to the crack cocaine amendments. (Crim. Case No. 5:04-cr-66, Doc. No. 57). He also filed an unsuccessful motion to reduce his sentence, as well as an unsuccessful motion to vacate. (Id., Doc. Nos. 63, 66, 69, 72-73).

         Petitioner began his supervised release on May 12, 2015. (Id., Doc. No. 75 at 1). A month later, he tested positive for marijuana use. (Id.). Petitioner agreed to the modification of his supervised release terms, including participation in the DROPS Program. (Id., Doc. No. 75- 1). Four months later, on October 15, 2015, Petitioner's probation officer, Patrick Bradshaw, recommended that Petitioner's supervised release be revoked, alleging that he committed the following violations: (1) a new violation of law for cocaine trafficking, including possession of 28.6 grams of cocaine; (2) a new violation of law for conspiring to traffic cocaine; (3) a new violation of law for the manufacture, sale, delivery, or possession of a controlled substance within 1, 000 feet of a school; (4) associating with a convicted felon; (5) using illegal narcotics; (6) testing positive for marijuana; and (7) failing to comply with the drug treatment requirements of his supervised release. (Id., Doc. No. 76). Based on the revocation petition, this Court issued a warrant for Petitioner's arrest. (Id., Doc. No. 76-1). At Petitioner's initial appearance, he was advised of his rights and the charges. (Id., Doc. Entry dated Nov. 12, 2015).

         At a preliminary revocation hearing before the Honorable David C. Keesler, United States Magistrate Judge, on November 17, 2015, Petitioner conceded that there was probable cause to support violations six and seven, but he sought a preliminary hearing as to violations one through five. (Id., Doc. No. 96 at 3: Revoc. Tr.). The probation officer testified that the first four violations related to Petitioner's sale of drugs to an undercover officer. (Id. at 7). When Petitioner was arrested after the sale, he had 28 grams of cocaine, and he was with another convicted felon. (Id. at 7-8). Judge Keesler found that the Government had established probable cause to support the violations and to detain Petitioner. (Id. at 21-22, 30).

         The final revocation hearing was held on May 2, 2016, before the Honorable Richard L. Voorhees. At the hearing, Petitioner stated that he had received a copy of the violation report, had reviewed and discussed the report with his attorney, and understood it. (Id., Doc. No. 97 at 4). The Court advised Petitioner of each of the alleged violations, and he denied each allegation and requested a hearing. (Id. at 4-7).

         Jamie Jackson, an undercover narcotics investigator, testified that Petitioner sold him crack cocaine in early October and an ounce of powder cocaine on October 13, 2015. (Id. at 10-11). Petitioner entered Jackson's car, took $1, 400 in cash, and handed Jackson an ounce of powder cocaine. (Id. at 15-16, 40-43). Once the money was exchanged, Petitioner was arrested. (Id. at 38). The transaction took place within 1, 000 feet of Catawba County Community College and was captured on video, which was played for the Court. (Id. at 18-22). Text messages between Jackson and Petitioner setting up the October 13 drug transaction were admitted into evidence. (Id. at 12-15). Matthew Farra, a task force officer with the Catawba County Sheriff's Office and the lead investigator on the case, identified the driver of the vehicle that brought Petitioner to the cocaine transaction as William Brawley. (Id. at 34-35, 45-46). The Government then submitted two judgments showing Brawley's prior felony convictions. (Id. at 46).

         Jenny Leiser, a drug lab manager for the U.S. Probation Office, testified that she analyzed Petitioner's August 4, 2015, urine sample, which tested positive for the presence of cannabinoids (marijuana). (Id. at 50-54). According to Petitioner's probation officer, following Petitioner's second failed drug test, Petitioner admitted to him that he had in fact used marijuana during that time period. (Id. at 69, 73). Petitioner also admitted to using marijuana since the age of 12, and to using marijuana while in prison and in a halfway house. (Id.). Paul Rauscher, a substance abuse counselor, testified that Petitioner missed his counseling sessions in July and August and that he dismissed Petitioner from the treatment program in October 2015. (Id. at 61-64).

         This Court held that the Government had proven the seven violations by a preponderance of the evidence, revoked Petitioner's supervised release, and sentenced Petitioner to 60 months of imprisonment. (Id. at 84-86, 97-99). Petitioner challenged the revocation of supervised release on direct appeal. United States v. Wheeler, 682 Fed.Appx. 229 (4th Cir. 2017). Petitioner's counsel filed an Anders brief, but questioned whether this Court abused its discretion by finding adequate evidence that Petitioner trafficked cocaine. (Id. at 230). Petitioner filed a pro se supplemental brief, arguing that his 60-month sentence was unreasonable. (Id.).

         The Fourth Circuit affirmed, holding that this Court did not clearly err in finding that the substance that Petitioner sold was cocaine, that the Government established by a preponderance of the evidence that Petitioner had engaged in new criminal conduct, and that this Court properly revoked Petitioner's supervised release. (Id.). The Fourth Circuit also held that Petitioner's sentence was procedurally and substantively reasonable. (Id.). Petitioner timely filed the present motion to vacate on April 18, 2018, arguing that he was improperly sentenced and that he received ineffective assistance of counsel in connection with the revocation of his supervised release. (Doc. No. 1 at 13). The Government filed its response on June 25, 2018. (Doc. No. 4).


         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an ...

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