United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE.
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 [DE 407] and petitioner's corrected motion to
vacate [DE 415]. A hearing was held before the undersigned on
February 8, 2019 at Raleigh, North Carolina. For the reasons
that follow, plaintiffs remaining claim is DENIED.
2014, following a jury trial, petitioner was sentenced to 360
months' imprisonment for conspiracy to commit money
laundering and money laundering in violation of 18 U.S.C.
§ 1956. [DE 346]. Petitioner appealed, and in April
2016, the Fourth Circuit affirmed in part but vacated
petitioner's conviction for conspiracy to commit money
laundering. [DE 391]. The Court amended its judgment to note
the acquittal. [DE 394]. In November 2016, petitioner's
sentence was reduced to 292 months' imprisonment.
October 2017, petitioner filed apro se motion to
vacate under 28 U.S.C. § 2255. [DE 407]. He filed a
corrected motion soon after. [DE 415]. The government moved
to dismiss nine of petitioner's ten claims under Federal
Rule of Civil Procedure 12(b)(6), but conceded that
anK evidentiary hearing should be held on
petitioner's claim of juror bias. [DE 423]. In January
2019, the Court dismissed each of petitioner's claims
except his claim of juror bias. [DE 449]. An evidentiary
hearing on that claim was held on February 8, 2019. [DE 457].
only claim still before the Court is whether petitioner's
trial counsel was constitutionally ineffective in allegedly
failing to disclose discovered juror bias following the
trial. To prevail on a claim for ineffective assistance of
counsel claim under Strickland v. Washington, 466
U.S. 668 (1984), petitioner must show "that
counsel's performance fell below an objective standard of
reasonableness." Sharpe v. Bell, 593 F.3d 372,
382 (4th Cir. 2010) (internal quotation marks omitted). A
court's "scrutiny of counsel's performance must
be highly deferential." Id. In fact, there is a
'"strong presumption' that a trial counsel's
strategy and tactics fall 'within the wide range of
reasonable professional assistance.'" United
States v. Roane, 378 F.3d 382, 404 (4th Cir. 2002)
(quoting Strickland, 466 U.S. at 689). Petitioner
must further show that "there is a reasonable
probability that, but for counsel's unprofessional
errors/the result of the proceeding would have been
different." Strickland, 466 U.S. at 694.
Petitioner's claims can only succeed if he establishes
both that his counsel's performance fell below an
objective standard of reasonableness and that, but
for counsel's errors, the result would have been
the nature of petitioner's claim, the Court held an
evidentiary hearing. See Bennett v. Stirling, 170
F.Supp.3d 851, 867-68 (D.S.C. 2016) ("The usual remedy
for allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual bias."),
aff'd, 842 F.3d 319 (4th Cir. 2016). Petitioner,
with the assistance of an interpreter, testified at the
hearing. Petitioner testified that his trial counsel told
him, on the day of his conviction, that one of the jurors had
informed counsel that he had only convicted him "because
[he] was Mexican and that all that we came to this country
for was to sell drugs." Petitioner further testified
that his trial counsel did not inform the Court of the
juror's statement and did not otherwise address it.
Petitioner's trial counsel, Mr. Steven E. Hight, also
testified at the hearing. Mr. Hight testified that in the
thirty minutes following the trial he spoke with a juror and
the juror said to him that "there were too many drug
dealers and they were making too much money and paying
lawyers too much money to get 'em out." Mr. Hight
testified that the juror did not mention petitioner's
race or nationality. He testified that, between thirty
minutes and an hour after the trial, he informed petitioner
of what the juror had told him.
considered the conflicting testimony in this matter, the
Court credits the testimony of Mr. Hight and finds that the
juror's statement made no mention of petitioner's
race or nationality. The Court finds that the juror's
statement was, at most, ambiguous. Under Bennett,
petitioner has failed to prove actual bias. The juror
statement does not clearly demonstrate bias and, therefore,
petitioner's counsel was not deficient in failing to
bring the statement to the Court's attention. See
United States v. Powell, 850 F.3d 145, 150 (4th Cir.
2017). Petitioner cannot demonstrate that his counsel's
performance fell below an objective standard of
reasonableness and, accordingly, there is no need to consider
whether the result would have been different had counsel
acted differently. Thus, petitioner's only remaining
claim, and his two motions to vacate, must be denied.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). 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, 483-84 (2000);
Rose v.Lee, 252 F.3d 676, 683 (4th Cir. 2001). As
reasonable jurists would not find this Court's dismissal
of petitioner's § 2255 motion debatable, a
certificate of appealability is DENIED.
above reasons, petitioner's motion to vacate [DE 407] and
corrected motion to vacate [DE 415] are DENIED. A ...