United States District Court, E.D. North Carolina, Eastern Division
Malcolm J. Howard Senior United States District Judge.
matter is before the court on the government's motion to
dismiss, [DE #45], petitioner's motion to vacate under 28
U.S.C. § 2255, [DE #38] . Petitioner has not filed a
response, and the time for further filing has expired. This
matter is ripe for adjudication.
11, 2015, petitioner entered a guilty plea without a written
memorandum of plea agreement to conspiracy to distribute and
possess with intent to distribute 500 grams or more of a
mixture and substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. § 846 and 21
U.S.C. § 841(b)(1)(A) (Count One). On October 6, 2016,
the court sentenced petitioner to a total term of
imprisonment of 120 months. [DE #36]. Petitioner did not
appeal. On May 31, 2016, petitioner timely filed the instant
motion to vacate under 28 U.S.C. § 2255, [DE #38],
arguing his counsel rendered ineffective assistance by 1) not
stressing petitioner's minor participation in the seizure
sufficiently so that petitioner would be responsible for a
lesser charge and receive a lesser sentence; 2) not assisting
to the best of his ability because he did not attempt to
negotiate petitioner's case with the Assistant United
States Attorney ("AUSA"); 3) petitioner not being
able to speak English and not understanding what he was
signing in the plea agreement; 4) failing to arrange several
meetings with the AUSA and Drug Enforcement Agency
("DEA") agents to discuss petitioner's case
before sentencing; 5) failing to demonstrate to the AUSA and
DEA at petitioner's sentencing that petitioner's
cooperation involved another person who had hired petitioner
and who owned the methamphetamine he possessed; 6)
petitioner's cooperation in the case was sufficient to
arrest this other individual and his associates; and 7) after
petitioner cooperated and provided detailed information about
his case, there was never an agreement in his case
between the AUSA, counsel, and petitioner. [DE #38 at 5, 7].
prove ineffective assistance of counsel, petitioner must
satisfy the dual requirements of Strickland v.
Washington, 466 U.S. 668, 687 (1984). First, petitioner
must show that counsel's performance was deficient in
that it fell below the standard of reasonably effective
assistance. Id. at 687-91. In making this
determination, there is a strong presumption that
counsel's conduct was "within the wide range of
reasonable professional assistance." Id. at
689. The Strickland court reasoned that, "[i]t
is all too tempting for a defendant to second-guess
counsel's assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel's defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable." Id. (citing Engle v.
Isaac, 456 U.S. 107, 133-34 (1982)). Second, petitioner
"must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Id. at 694.
court observes petitioner has argued that counsel rendered
ineffective assistance as a result of petitioner's
inability to speak English and "to understand what [he]
was signing in [his] plea agreement." [DE #38 at 5].
However, the court notes petitioner entered a plea of guilty
without a plea agreement, and petitioner had a sworn Spanish
interpreter at arraignment and at sentencing.
Petitioner's argument that his cooperation failed to
result in a plea agreement or reduction in sentence does not
necessitate the conclusion that counsel failed to. render
effective assistance. The court observes defense counsel
filed a sentencing memorandum requesting a downward variance
as well as a written objection to the presentence
investigation report ("PSR"). [DE #30 and #34].
Based on defense counsel's motion for a downward
variance, the court sentenced petitioner to 120 months, the
statutory minimum for his offense and 15 months below the
advisory guideline range found in his PSR. [DE #30 and #36] .
As to petitioner's claims regarding meetings with the
AUSA and DEA agents, the court recognizes that in order to
prevail, petitioner would have to "overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.'"
Strickland, 466 U.S. at 689 (citing Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). The court finds
petitioner has not alleged facts showing counsel's
assistance fell "below the standard of reasonably
effective assistance." Id. at 687-91.
reasons stated above as well as in the government's
memorandum, the court finds petitioner has failed to state a
claim upon which relief may be granted, specifically that he
has failed to state a claim for ineffective assistance of
foregoing reasons, the government's motion to dismiss,
[DE #45], is GRANTED. Accordingly, petitioner's motion to
vacate, [DE #38], is DISMISSED. The clerk is directed to
close this case.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2) (2000). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). A