United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255 [Doc. 1].
September 2015, Petitioner Joel Elias Gonzalez was charged in
a Bill of Indictment with distribution of a mixture and
substance containing 50 grams of methamphetamine (Count One);
distribution of 50 grams of actual methamphetamine (Count
Two); and distribution of a mixture and substance containing
a detectable amount of methamphetamine (Count Three), all in
violation of 21 U.S.C. § 841(a)(1). [Criminal No.
1:15-cr-00084-MR (“CR”), Doc. 10: Indictment].
According to the Presentence Report, Petitioner had
distributed methamphetamine in and around Macon County, North
Carolina. [CR 1:15-cr-00084-MR-DLH-1, Doc. 26 at ¶ 8:
PSR]. A confidential source (CS) turned over drugs that
Petitioner had fronted to the CS, recorded phone calls in
which the CS and Petitioner discussed the drugs, and
conducted a controlled purchase of crystal methamphetamine
from Petitioner. [Id. at ¶¶ 9-21]. During
the controlled purchase, Petitioner sold the CS 101.4 grams
of 96.4% pure “actual” methamphetamine.
[Id. at ¶ 18].
Petitioner was arrested, he contacted his Georgia-based
distributor, Kory Farman, to confirm that Farman had gotten
everything (any leftover crystal methamphetamine) and that he
was still entitled to a share of the profits. [Id.
at ¶¶ 15, 23]. Farman later told investigators that
Petitioner was his supply source for crystal methamphetamine
and that he had moved up to buying half a pound of drugs at a
time. [Id. at ¶ 28]. Farman also identified
three other customers who bought from Petitioner, including
the CS. [Id.]. Farman also admitted that after
Petitioner's arrest, Farman had retrieved over 2.2 pounds
of crystal methamphetamine from Petitioner's property and
sold it. [Id. at ¶ 29]. The person who bought
the crystal methamphetamine confirmed this sale.
[Id. at ¶ 31].
estranged wife, Susan Harris, also confirmed that she had
found crystal methamphetamine at her residence on several
occasions and had confronted Petitioner about it.
[Id. at ¶¶ 24-27]. Investigators found
containers with trace amounts of crystal methamphetamine at
her residence. [Id. at ¶ 26]. Petitioner was
charging $800 an ounce for the crystal methamphetamine.
[Id. at ¶ 23].
February 2016, Petitioner pled guilty pursuant to a written
plea agreement to Count Two of the Bill of Indictment. [CR
Doc. 19: Plea Agreement]. As part of Petitioner's plea
agreement, the parties agreed that a base offense level of 32
was appropriate; that no enhancement for playing an
aggravated role or obstruction of justice applied; and that
Petitioner should receive a three-level reduction for
acceptance of responsibility. [Id. at ¶ 7]. In
exchange for Petitioner's guilty plea to Count Two, the
Government agreed to dismiss Counts One and Three at the
appropriate time. [Id. at ¶ 2]. Petitioner
waived the right to challenge his conviction or sentence on
direct appeal or in any post-conviction proceeding, except as
to claims of ineffective assistance of counsel or
prosecutorial misconduct. [Id. at ¶¶
18-19]. After a plea hearing, the Magistrate Judge accepted
Petitioner's guilty plea, finding that it was knowingly
and voluntarily made. [Id., Doc. 21: Acceptance and
Entry of Guilty Plea].
probation officer prepared a presentence report, recommending
in accordance with the parties' joint recommendations in
the plea agreement that Petitioner's total offense level
was 29. [CR Doc. 26 at ¶ 48]. With a total offense level
of 29 and a criminal history category of VI, Petitioner's
advisory guidelines range was calculated to be 151 to 188
months' imprisonment. [Id. at ¶¶ 76,
120]. In May 2016, this Court sentenced Petitioner to 151
months of imprisonment, the low end of the advisory
guidelines range. [CR Doc. 32: Judgment].
2017, Petitioner filed a motion to vacate, arguing inter alia
that his counsel failed to file a notice of appeal despite
Petitioner's express instruction to do so. [CR Doc. 34].
The Court granted Petitioner's motion to vacate in part
and directed the entry of an Amended Judgment so as to allow
Petitioner to file a direct appeal. [CR Doc. 36]. The other
claims raised by Petitioner in his motion to vacate were
dismissed without prejudice. [Id.]. Petitioner filed
his direct appeal in August 2017. His appellate counsel filed
a motion pursuant to Anders v. California, 386 U.S.
738 (1967), certifying that there were no meritorious issues
for appeal, but questioning whether this Court had correctly
calculated Petitioner's criminal history score.
United States v. Gonzalez, 711 Fed.Appx. 183, 184
(2018). The Fourth Circuit affirmed Petitioner's
conviction and sentence. Id.
timely filed the present motion to vacate in October 2018,
arguing that his trial counsel provided ineffective
assistance by failing to investigate whether the drugs that
he allegedly distributed contained methamphetamine before
advising Petitioner to plead guilty; that his attorney had a
conflict of interest; and that the Government committed
prosecutorial misconduct. [Doc. 1 at 13-16]. The Government
filed its response on February 15, 2019. [Doc. 5].
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the motion to vacate can be resolved without an
evidentiary hearing based on the record and governing case
law. See Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
Petitioner's Ineffective ...