United States District Court, E.D. North Carolina, Eastern Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on petitioner's motions to
vacate, set aside, or correct sentence under 28 U.S.C. §
2255, as amended (DE 215, 219, 221), and the government's
motions to dismiss and in the alternative for summary
judgment (DE 224, 268). Pursuant to 28 U.S.C. §
636(b)(1)(B), United States James E. Gates entered memorandum
and recommendation (“M&R”), (DE 292), wherein
it is recommended that the court deny petitioner's
motions and grant the government's motions. Petitioner
timely filed objections to the M&R, and in this posture,
the issues raised are ripe for ruling. For the reasons that
follow, the court adopts the M&R, denies petitioner's
motions, and grants the government's motions.
court incorporates herein by reference the thorough
background of this case set forth in the M&R. The court
summarizes below key procedural facts as pertinent to the
court's discussion herein. On February 5, 2010, a jury
convicted petitioner of conspiracy to distribute and possess
with intent to distribute cocaine base (“crack”),
in violation of 21 U.S.C. § 846, four counts of
distribution of crack, and one count of possession with
intent to distribute crack, in violation of 21 U.S.C. §
841(a). This court sentenced petitioner to life imprisonment
on May 13, 2010.Petitioner appealed, and the United States
Court of Appeals for the Fourth Circuit affirmed the
convictions, vacated the sentence, and remanded for
resentencing in light of United States v. Simmons,
649 F.3d 237 (4th Cir.2011) (en banc). See United States
v. Coppedge, 454 Fed.Appx. 202, 208 (4th Cir. 2011).
Upon resentencing, this court sentenced petitioner to 360
months imprisonment on all counts running concurrently. The
Fourth Circuit affirmed the amended judgment. United
States v. Coppedge, 535 Fed.Appx. 288, 289 (4th Cir.
filed the instant motions in January and February, 2015,
relying upon memoranda in support and attachments thereto,
including affidavits by petitioner and co-defendant Roy C.
Rhodes (“Rhodes”), as well as objections to
presentence report submitted by petitioner's trial
counsel Steven E. Hight (“Hight”). As summarized
in the M&R, the claims raised by the instant motions are
1) Counsel was ineffective in failing to request informant
2) Counsel was ineffective in failing to argue that
petitioner should be sentenced based upon drug type and
quantity carrying the least statutory penalty.
3) Counsel was ineffective in failing to raise the Fair
Sentencing Act on appeal.
4) Counsel was ineffective in failing to investigate an alibi
5) Counsel was ineffective with respect to entry into a plea
6) Counsel was ineffective in failing to object at sentencing
to a leadership enhancement.
7) Search and seizure of petitioner's cell phone violated
8) Jury received erroneous instruction on aiding and
9) Violation of due process because of criminal acts of a
10) Petitioner is actually innocent of sentencing
11) Petitioner is actually innocent of career offender