United States District Court, E.D. North Carolina, Western Division
Malcolm J. Howard Senior United States District Judge
matter is before the court on the government's motion to
dismiss, [DE #277], petitioner's 28 U.S.C. § 2255
motion to vacate, [DE #271]. Petitioner responded, [DE #289].
Petitioner's motion to supplement § 2255, [DE #275
and #285], and motion, to amend motion to supplement §
2255, [DE #316], are hereby GRANTED; petitioner's motion
for leave to relate back, [DE #317], is GRANTED; and
petitioner's amended § 2255, [DE #316] is considered
timely filed by this court. The court has considered all of
petitioner's filings. The time for further filing has
expired, and this matter is ripe for adjudication.
9, 2014, petitioner pled guilty, pursuant to a written
memorandum of plea agreement, to conspiracy to distribute and
possess with the intent to distribute a quantity of heroin,
in violation of 21 U.S.C. § 846 and 841(b) (1) (B)
(Count One), and two counts of possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A) (Counts Three and Eleven). This
court sentenced petitioner to a total term of imprisonment of
480 months on May 12, 2015. Petitioner did not appeal.
then timely filed the instant motion to vacate on April 25,
2016, claiming counsel was ineffective by allegedly
erroneously advising petitioner that he could be held
criminally liable under 18 U.S.C. § 924(c) for Counts
Three and Eleven for firearms found in his girlfriend's
home where drugs were located. [DE #271-1 at 4-7; DE #275 at
1] . Petitioner also alleges that his convictions for Counts
Three and Eleven should be dismissed in light of Johnson
v. United States, 135 S.Ct. 2551 (2015). [DE #271-1 at
Johnson decision, the Supreme Court of the United
States invalidated the residual clause found in 18 U.S.C.
§ 924(e)(2)(B)(ii) ("Armed Career Criminal
Act" or "ACCA"). Johnson, 235 S.Ct.
at 2557. In Welch v. United States, 136 S.Ct. 1257,
1265 (2016), the Supreme Court held the rule pronounced in
Johnson is retroactively applicable on collateral
petitioner was not sentenced under ACCA. Petitioner's two
convictions under 18 U.S.C. § 924(c) were based upon
possession of a firearm in furtherance of drug trafficking
crimes and not crimes of violence or violent felonies. [PSR
at 1]. Therefore, the Supreme Court's decisions in
Johnson and Welch, invalidating the
residual clause of ACCA's definition of violent felony,
cannot provide a basis for petitioner's requested relief.
Ineffective Assistance of Counsel ("IAC")
prove ineffective assistance of counsel, petitioner must
satisfy the dual requirements of Strickland v.
Washington, 4 66 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.
alleges counsel rendered ineffective assistance when counsel
"erroneously informed him that a conviction [under
§ 924(c) for Counts Three and Eleven] could be based on
mere presence of a gun on the premises where drugs are."
[DE #271 at 4]. Petitioner argues mere presence of the
firearm was not enough to show the firearm was used "in
furtherance of" the drug trafficking crimes. United
States v. Lomax, 293 F.3d 701, 704 (4th Cir. 2002)
(finding sufficient evidence of possession "in
furtherance of" drug trafficking crime).
light of the evidence surrounding petitioner's drug
trafficking in heroin, including his admission to agents in
June 2012 "that there was heroin, money, and a shotgun
at his residence," and in June 2013 that "he
possessed the firearm for protection as a result of his drug
trafficking activities," [PSR at ¶23], the court
finds there was sufficient evidence to support a finding that
the firearms were used in furtherance of petitioner's
drug trafficking crimes, and counsel's advice in light of
this evidence did not "f[a]ll below the standard of
reasonably effective assistance." Strickland,
466 U.S. at 687- 91. Instead, the court finds counsel's
conduct was "within the wide range of reasonable
professional assistance." Id. at 689.
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