United States District Court, W.D. North Carolina, Charlotte Division
Cogburn, Jr., Judge
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1).
November 11, 2016, Petitioner pleaded guilty in this Court to
possession with intent to distribute cocaine base, 21 U.S.C.
§§ 841(a)(1), (b)(1)(C). (Crim. No. 3:16cr206, Doc.
No. 18 at 1, 3: PSR; Doc. No. 12: Acceptance and Entry of
Guilty Plea). This Court sentenced Petitioner to 84 months in
prison, below the sentence guidelines range of 92-115 months.
(Id., Doc. No. 22: Judgment; Doc. No. 23: Statement
of Reasons). In determining Petitioner's total offense
level of 23, the Court applied a two-level enhancement under
U.S.S.G. § 2D1.1(b)(1), based on the Court's finding
that Petitioner possessed a dangerous weapon.
appealed, but his appeal was later dismissed. (Id.,
Doc. No. 34). On October 15, 2018, Petitioner timely filed
the present § 2255 motion, arguing that counsel was
ineffective for failing to object to Petitioner's
two-level sentencing enhancement under Section 2D1.1(b)(1).
The Government filed its Response on February 19, 2019, (Doc.
No. 3), and Petitioner filed a Reply on March 7, 2019, (Doc.
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 arguments presented by Petitioner 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).
Sixth Amendment to the U.S. Constitution guarantees that in
all criminal prosecutions, the accused has the right to the
assistance of counsel for his defense. See U.S.
CONST. amend. VI. To show ineffective assistance of counsel,
Petitioner must first establish a deficient performance by
counsel and, second, that the deficient performance
prejudiced him. See Strickland v. Washington, 466
U.S. 668, 687-88 (1984). In making this determination, there
is “a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance.” Id. at 689; see also United
States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010).
Furthermore, in considering the prejudice prong of the
analysis, the Court “can only grant relief under . . .
Strickland if the ‘result of the proceeding
was fundamentally unfair or unreliable.'”
Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998)
(quoting Lockhart v. Fretwell, 506 U.S. 364, 369
(1993)). Under these circumstances, the petitioner
“bears the burden of affirmatively proving
prejudice.” Bowie v. Branker, 512 F.3d 112,
120 (4th Cir. 2008). If the petitioner fails to meet this
burden, a “reviewing court need not even consider the
performance prong.” United States v. Rhynes,
196 F.3d 207, 232 (4th Cir. 1999), opinion vacated on
other grounds, 218 F.3d 310 (4th Cir. 2000).
support of his ineffective assistance of counsel claim,
Petitioner contends that his attorney was deficient for
failing to object to Petitioner's two-level sentencing
enhancement under U.S.S.G. § 2D1.1(b)(1). Petitioner
argues that he was not subject to Section 2D1.1(b)(1) because
he contends that Section 2D1.1(b)(1) “does not apply to
those convicted of ‘possession [with intent] to
distribute.'” (Doc. No. 1 at 15). Petitioner's
ineffective assistance of claim is without merit. First,
contrary to Petitioner's assertion, Section 2D1.1(b)(1)
does apply to those convicted of possession with
intent to distribute. U.S.S.G. Appendix A at 591 (2016)
(specifying that U.S.S.G. § 2D1.1 applies to offenses
under “21 U.S.C. § 841(a)”); United
States v. Manigan, 592 F.3d 621, 625 (4th Cir. 2010)
(upholding application of Section 2D1.1(b)(1) to convictions
for possession with intent to distribute cocaine).
nothing in the plea agreement precluded this Court from
applying that guideline. (Crim. No. 3:16CR206, Doc. No. 10 at
2: Plea Agreement). Petitioner, therefore, cannot establish
that his attorney's performance fell below an objective
standard of reasonableness, judged “from counsel's
perspective at the time.” Strickland, 466 U.S.
at 689. An attorney is not deficient for omitting to make
meritless or even “long-shot” arguments.
United States v. Mason, 774 F.3d 824, 830 (4th Cir.
2014). Nor can Petitioner establish prejudice in the form of
“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. No. reasonable probability exists that this court would
have sustained an objection to section 2D1.1(b)(1) based on
Petitioner's mistaken theory about the scope of that
guideline, or the plea agreement. See United States v.
Tate, 845 F.3d 571, 575 (4th Cir. 2017) (“[I]n
enforcing plea agreements, the government is held only to
those promises that it actually made to the
Court will also deny Petitioner's request that the Court
order Petitioner's counsel to “release the case
file.” (Doc. No. 1 at 13). Rule 6 of the Rules
Governing 2255 proceedings, “which permits the district
court to order discovery on good cause shown, does not
authorize fishing expeditions.” Ward v.
Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994). To obtain
discovery under the “good cause” standard,
Petitioner must establish a “prima facie case for
relief.” United States v. Roane, 378 F.3d 382,
403 (4th Cir. 2004). Good cause for discovery requires, at a
minimum, “specific allegations of fact” that, if
proved, “would entitle him to relief.” United
States v. Webster, 392 F.3d 787, 801 (5th Cir. 2004).
Here, the facts alleged in Petitioner's motion, even if
proven, would not entitle him to relief. Therefore,
Petitioner is not entitled to discovery.
Petitioner's claim is without merit, and the Court will
therefore deny and dismiss his motion to vacate.