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Gonzalez v. United States

United States District Court, W.D. North Carolina, Asheville Division

March 5, 2019

JOEL ELIAS GONZALEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF DECISION AND ORDER

          MARTIN REIDINGER UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1].

         I. BACKGROUND

         In 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].

         After 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].

         Petitioner's 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].

         In 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].

         A 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].

         In May 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.

         Petitioner 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].

         II. STANDARD OF REVIEW

         Rule 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).

         III. DISCUSSION

         A. Petitioner's Ineffective ...


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