United States District Court, E.D. North Carolina, Western Division
C. DEVER II, UNITED STATES DISTRICT JUDGE.
January 30, 2018, Randall Terrance Evans ("Evans")
moved under 28 U.S.C. § 2255 to vacate, set aside, or
correct his 41-month sentence [D.E. 63]. On March 26, 2018,
Evans moved to amend his section 2255 motion [D.E. 67]. On
April 30, 2018, the government moved to dismiss Evans's
section 2255 motion for failure to state a claim [D.E. 71]
and filed a memorandum in support [D.E. 72]. On May 29, 2018,
Evans responded in opposition to the government's motion
[D.E. 74]. As explained below, the court grants the
government's motion to dismiss and dismisses Evans's
section 2255 motion.
6, 2016, pursuant to a plea agreement [D.E. 14], Evans
pleaded guilty to conspiracy to commit bank and wire fraud in
violation of 18 U.S.C.§ 1349. See[D.E.70]. On March 21,
2017, this court held Evans's sentencing hearing. See
[D.E. 31]. The court calculated Evans's advisory
guideline range to be 78 to 97 months' imprisonment. See
Sentencing Tr. [D.E. 60] 4-5. After considering the arguments
of counsel and all relevant factors under 18 U.S.C. §
3553(a), the court varied down and sentenced Evans to 41
months' imprisonment. See Sentencing Tr. at 17-25; [D.E.
36]. Evans did not appeal.
January 30, 2018, Evans filed his section 2255 motion [D.E.
63]. On March 26, 2018, Evans moved to amend his 2255 section
motion [D.E.67]. Evans contends that: (1) the government
"failed to adhere to the statutory definition of a
financial institution in the charging document and proceeding
of the instant matter[, ]" [D.E. 63-1] at 5-10; (2) the
government did not cite the essential elements of 18 U.S.C.
§ 1349 in its criminal information, Id. at
10-14; (3) counsel was ineffective in failing "to
investigate the statutory requirements" of 18 U.S.C.
§ 1349, Id. at 16-20; (4) counsel was
ineffective in failing to investigate a possible statute of
limitations defense, Id. at 21-22; (5) counsel was
ineffective in failing to require the government to cite
"lawful victims of the alleged crime and for failure to
challenge a loss calculation and securitization as essential
facts of the charge[, ]" Id. at 22-26; and (6)
counsel was ineffective in failing to "address or
comprehend the definition of a financial institution."
Id. at 26-28. On April 30, 2018, the government
moved to dismiss Evans's motion for failure to state a
claim upon which relief can be granted [D.E. 71] and filed a
memorandum in support [D.E. 72].
government may challenge the legal sufficiency of a section
2255 petition through a motion to dismiss under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. See Rule 12, Rules
Governing Section 2255 Proceedings; United States v.
Frady, 456 U.S. 152, 166-68 n.15 (1982); United
States v. Redtmayer, 900 F.2d 257, at *4 (4th Cir. 1990)
(unpublished table decision). A motion to dismiss under Rule
12(b)(6) for "failure to state a claim upon which relief
can be granted" tests a complaint'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); Cnlftman v. Md. Court of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010), affd, 566
U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298,
302 (4th Cir. 2008); accord Erickson v. Pardus, 551
U.S. 89, 93-94 (2007) (per curiam). In considering a motion
to dismiss, a court need not accept a petition'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.3dat302
(quotation omitted): see Iqbal, 556 U.S. at 677-79.
The court, however, "accepts all well-pled facts as true
and construes these facts in the light most favorable to the
plaintiff in weighing the legal sufficiency" of the
petition. Nemet Chevrolet Ltd. v. Consumeraffairs.com.
Inc., 591 F.3d 250, 255 (4th Cir. 2009). Construing the
facts in this manner, the petition must contain
"sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face."
Id. (quotation omitted).
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(d); Tellabs. Inc.
v. Makor Issues & Rights. Ltd., 551 U.S. 308, 322
(2007); Philips v. Pitt Cty. Mem'l Hosp.,
572F.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.3d223, 225 (1st Cir. 1993). Likewise, a
court may rely on its own familiarity with the case. See,
e.g. Blackledge v. Allison, 431 U.S. 63, 74
n.4 (1977); United States v. Ehress, 730 F.3d 354,
359-60) (4th Cir. 2013).
Evans's first two claims, Evans failed to raise these
claims on direct appeal. Thus, procedural default bars Evans
from presenting these claims under section 2255. See,
e.g., Massaro v. United States, 538 U.S. 500, 504
(2003); Bouslev v. United States, 523 U.S. 614, 621
(1998); United States v. Fugit 703 F.3d 248, 253
(4th Cir. 2012); United States v. Sanders, 247 F.3d
139, 144 (4th Cir. 2001); Spence v. United States,
No. 2:11-CR-4-D, 2:15-CV-45-D, 2017 WL 385770, at *2 (E.D.
N.C. Jan. 25, 2017) (unpublished), appeal dismissed,
737 Fed.Appx. 168 (4th Cir. 2018) (per curiam) (unpublished).
Furthermore, Evans has not plausibly alleged "actual
innocence" or "cause and prejudice" resulting
from these alleged errors. See Bousley, 523 U.S. at
622-24; Cnlftman v. Thnmpsnn, 501 U.S. 722, 753
(1991); Frady, 456 U.S. at 170; United States v.
Pettiford, 612 F.3d 270, 280-85 (4th Cir. 2010);
United States v. Mikalajunas, 186 F.3d 490,
493-95 (4th Cir. 1999). Accordingly, these claims fail.
the first two claims fail because Evans pleaded guilty to the
federal charge, and the alleged errors do not affect
subject-matter jurisdiction. See, e.g.. Tollett
v. Henderson, 411 U.S. 258, 266-67 (1973); United
States v. Cherry, 720 F.3d 161, 166 (4th Cir. 2013);
United States v. Willis, 992 F.2d 489, 490 (4th Cir.
1993); Parker v. Ross, 470 F.2d 1092, 1093 (4lh Cir.
1972); cf Class v. United States, 138 S.Ct. 798,
four remaining claims allege ineffective assistance
of trial counsel. "The 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). The Sixth Amendment right
to counsel extends to all critical stages of a criminal
proceeding, including plea negotiations, trial, sentencing,
and appeal. See, e.g., Missouri v.
Frye, 566 U.S. 134, 140 (2012); Lafler v.
Cooper, 566 U.S. 156, 164-65 (2012); Glover v.
United States, 531 U.S. 198, 203-04 (2001).
"[S]entencing 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, 531 U.S. at 203-04. To state a
claim of ineffective assistance of counsel in violation of
the Sixth Amendment, Evans must show that his attorney's
performance fell below an objective standard of
reasonableness and that he suffered prejudice as a result.
See Strickland v. Washington, 466 U.S. 668, 687-91
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." Id. at 689. Therefore, the
"court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance." Id. A
party also must show that counsel's deficient performance
prejudiced the party. See Id. 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. When a defendant pleads guilty, "in
order to satisfy the 'prejudice' requirement, the
defendant must show that there is a reasonable probability
that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial."
Hill v. Lockhart, 474 U.S. 52, 59 (1985); see
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 on guilty
pleas." Lee, 137 S.Ct. at 1967 (quotations and
counsel's alleged failure to mvestigate me stamtoiy
requirements of 18U.S.C. § 1349, to cite lawful victims
or challenge the loss calculation, or to comprehend the
definition of a financial institution, Evans pleaded guilty
to violating 18 U.S.C. § 1349, including all of its
elements. See Rule 11 Tr. [D.E. 70] 22-30. During
Evans's Rule 11 proceeding, Evans swore that he
understood the charge to which he was pleading guilty. See
id. Evans swore that he was fully satisfied with his
lawyer's legal services. See Id. at 13-19. Evans
also swore that he had reviewed and discussed his entire plea
agreement with counsel before he signed it, that he
understood each term in the plea agreement, and that the plea
agreement constituted the entire agreement that he had with
the government See Id. at 13-19, 24-26. Evans also
swore that he understood that the court could sentence him up
to the statutory maximum on the count of conviction, and that
if the court did so, Evans could not withdraw his guilty
plea. See Id. at 26-27.
sworn statements at his Rule 11 proceeding bind him. See,
e.g., 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
Cir. 2005V Those sworn statements show that Evans admitted to
the conspiracy as charged in count one. Evans's sworn
statements also show that Evans understood that, even if he
received a statutory-maximum sentence on the count of
conviction, he could not withdraw his guilty plea and would
not be able to go to trial. As such, Evans has not plausibly
alleged 'that, but for counsel's [alleged]
unprofessional error[s], the result of the proceeding would
have been different." Strickland, 466 U.S. at
694: see Lee, 137 S.Ct. at 1967-69; Hill,
474 U.S. at 59; Fields v. Attorney Gen, of Md., 956
F.2d 1290, 1297 (4th Cir. 1992). Simply put, even if
Evans's counsel raised these issues, Evans would not have
"insisted on going to trial." Hill, 474
U.S. at 59; see Lee, 137 S.Ct at 1967-69;
Strickland, 466 U.S. at 694. Thus, Evans cannot show
prejudice from the alleged errors, and the claims fail.
the claims fail as to performance. Defense counsel's
investigation was adequate and falls within the wide range of
professional performance. See, e.g.,
Strickland, 466 U.S. at 687-94. Evans admitted to the
charged conspiracy, and a factual basis existed for the
guilty plea. See Rule 11 Tr. at 28-35; see also
United States v. Gomez- Jimenez,750 F.3d 370,
378-79 (4th Cir. 2014;): United States v. Perry, 560
F.3d 246, 254 (4th Cir. 2000)- United States v Marshall,
332F.3d 254, 262-64 (4th Cir. 2003); United States v.
Bums,990 F.2d 1426, 1438-39 (4th Cir. 1993). Moreover,
Evans's Presentence Investigation Report CTSR")
recounted the factual basis for Evans's guilty plea as to
the conspiracy. See PSR [D.E. 22] ¶¶ 6-16. At