United States District Court, E.D. North Carolina, Western Division
C. DEVER, III UNITED STATES DISTRICT JUDGE.
February 12, 2018, Silvestre Cuadra-Nunez
("Cuadra-Nunez") moved under 28 U.S.C. § 2255
to vacate, set aside, or correct his 180-month sentence [D.E.
118]. On March 26, 2018, the government moved to dismiss
Cuadra-Nunez's section 2255 motion [D.E. 123] and filed a
memorandum in support [D.E. 124]. On April 20, 2018,
Cuadra-Nunez responded in opposition to the government's
motion [D.E. 126]. As explained below, the court grants the
government's motion to dismiss and dismisses
Cuadra-Nunez's section 2255 motion.
15, 2015, pursuant to a plea agreement [D.E. 91],
Cuadra-Nunez pleaded guilty to one count of conspiracy to
distribute and possess with intent to distribute five
kilograms or more of cocaine and a quantity of heroin in
violation of 21 U.S.C. §§ 846, 841(b)(1)(A) (count
one) and to one count of possession of a firearm in
furtherance of a drug trafficking crime and aiding and
abetting in violation of 18 U.S.C. § 924(c)(1)(A),
(c)(2) (count four). See [D.E. 62, 63, 92]. On September 15,
2015, at Cuadra-Nunez's sentencing hearing, the court
calculated Cuadra-Nunez's total offense level to be 29,
his criminal history category to be I, and his advisory
guideline range to be 120 months' imprisonment on count
one, and 5 years' imprisonment consecutive on count four.
See Sentencing Tr. [D.E. 93] 6. After thoroughly
considering all relevant factors under 18 U.S.C. §
3553(a), the court sentenced Cuadra-Nunez to 180 months'
imprisonment. See Id. at 10-15.
appealed. On December 2, 2016, the United States Court of
Appeals for the Fourth Circuit affirmed Cuadra-Nunez's
conviction, enforced the appellate waiver in
Cuadra-Nunez's plea agreement, and dismissed
Cuadra-Nunez's appeal concerning his sentence. See
United States v. Cuadra-Nunez, 664 Fed.Appx. 349,
350-52 (4th Cir. 2016) (per curiam) (unpublished).
February 12, 2018, Cuadra-Nunez filed his section 2255 motion
[D.E. 118]. In his motion, Cuadra-Nunez alleges ineffective
assistance of counsel and contends that his lawyer failed to
investigate the drug weight underlying count one and the
firearm underlying count four and to challenge the factual
bases for pleading guilty to count one and count four. See
Id. at 5-22.
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 claim'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, 555-63, 570 (2007); Coleman v. Md. Court of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff 'd,
566 U.S. 320 (2012); Giarratano v. Johnson, 521 F.3d
298, 302 (4th Cir. 2008). The government may challenge the
legal sufficiency of a section 2255 petition through a motion
to dismiss under Rule 12(b)(6). See Rule 12, Rules Governing
Section 2255 Proceedings; United States v. Frady,
456 U.S. 152, 166-68 n.15 (1982); United States v.
Reckmeyer, 900 F.2d 257, at *4 (4th Cir. 1990)
(unpublished table decision). 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 also 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.
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); see Strickland v. Washington, 466 U.S.
668, 687-91 (1984). The Sixth Amendment right to counsel
extends to all critical stages of a criminal proceeding.
See, e.g., Lafler v. Cooper, 566
U.S. 156, 164-65 (2012); Missouri v. Frye, 566 U.S.
134, 140 (2012). A defendant is entitled to effective
assistance of counsel when pleading guilty, and a guilty plea
cannot stand if, due to ineffective assistance, it was
involuntary or unknowing. See, e.g., Hill v.
Lockhart, 474 U.S. 52, 56-57 (1985); Fields v.
Attorney Gen., 956 F.2d 1290, 1296-97 & n.17 (4th
Cir. 1992). Moreover, "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. Breckenridge, 93
F.3d 132, 135 (4th Cir. 1996): see Glover v.
United States, 531 U.S. 198, 203-04 (2001).
individual alleging ineffective assistance of counsel must
demonstrate that counsel's representation fell below an
objective standard of reasonableness and that counsel's
deficient performance caused the individual prejudice. See
Strickland. 466 U.S. at 687-88, 691-96; see
also Lafler, 566 U.S. at 162-65;
Frye, 566 U.S. at 140-41; Hill, 474 U.S. at
57-58; Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir.
2000) (en banc). When 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." Strickland, 466 U.S. at 689.
Counsel need not file baseless motions or "raise every
available nonfrivolous" argument to provide effective
representation. See Knowles v. Mirzayance, 556 U.S.
Ill. 126-27 (2009). Rather, counsel's "reasonable
appraisal of a claim's dismal prospects for success"
is reason enough not to raise it. Id. at 127.
Moreover, the "court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance."
Strickland, 466 U.S. at 689.
demonstrate ineffective assistance of counsel, a party also
must show that counsel's deficient performance prejudiced
the party. See Strickland, 466 U.S. at 691-96. A
party does so by showing that there is a "reasonable
probability" that, but for the deficiency, "the
result of the proceeding would have been different."
Id. at 694. Because Cuadra-Nunez pleaded guilty,
Cuadra-Nunez must show that there is a reasonable probability
that, but for counsel's errors, he would not have pleaded
guilty and would instead have insisted on going to trial.
See Hill, 474 U.S. at 59; 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 oh guilty pleas."
Lee, 137 S.Ct. at 1967 (quotations and citations
court hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury."
Strickland, 466 U.S. at 695. When analyzing an
ineffective-assistance-of-counsel claim, a court may rely on
its own familiarity with the case. See Blackledge v.
Allison, 431 U.S. 63, 74 n.4 (1977); United States
v. Dvess, 730 F.3d 354, 359-60 (4th Cir. 2013).
alleges that his counsel failed to investigate the drug
weight underlying count one and the firearm underlying count
four and to challenge the factual bases of Cuadra-Nunez's
guilty plea to count one and count four. At his arraignment,
Cuadra-Nunez swore that he understood all of the rights that
he would waive if he pleaded guilty, had discussed his plea
agreement with counsel, was satisfied with counsel's
legal services, and understood the terms of his plea
agreement. See Rule 11 Tr. [D.E. 92] 6-7, 13-19,
23-26. Cuadra-Nunez also swore that he understood the
elements of count one and count four, the maximum penalties
for each count, that the guidelines were advisory, and that
the court could sentence him up to the statutory maximum on
each count. Id. Cuadra-Nunez then pleaded guilty to
count one and count four, swore that he committed the crimes
in count one and count four, and the government proffered a
factual bases for each count. See id. at 26-33.
Those sworn statements bind Cuadra-Nunez. See
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
has not plausibly alleged that his counsel failed to make a
reasonable investigation of the criminal conduct underlying
count one and count four or plausibly alleged why the court
should have declined to accept his guilty plea to count one
and count four. Cf Premo v. Moore, 562 U.S. 115,
123-32 (2011); Glover, 531 U.S. at 201-02, 204-05;
Strickland, 466 U.S. at 690-91. "The
reasonableness of counsel's actions may be determined or
substantially influenced by the defendant's own
statements or actions," such as admitting guilt and
desiring to resolve the case with a plea agreement.
Strickland, 466 U.S. at 691: see Premo. 562 U.S. at
123-25. Counsel's tactical decision not to make a
baseless objection during the Rule 11 proceeding is entitled
to deference. See, e, g,, Knowles, 556 U.S. at
124-28; Strickland, 466 U.S. at 687-91; United
States v. Surginer, 64 F.3d 661, at *2-3 (4th Cir. 1995)
(per curiam) (unpublished table decision).
at the sentencing hearing, the court expressly asked
Cuadra-Nunez if he had any objections to the Presentence
Investigation Report ("PSR") [D.E. 70], and
Cuadra-Nunez answered, "No." Sentencing Tr. [D.E.
93] 6. Notably, the PSR recounted the factual bases for
Cuadra-Nunez's guilty plea to count one and count four.