United States District Court, W.D. North Carolina, Statesville Division
D. Whitney Chief United States District Judge.
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).
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).
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).
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.
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
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.
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).
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).
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.).
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).
STANDARD OF REVIEW
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 ...