United States District Court, E.D. North Carolina, Western Division
DAVID C. MAYHEW, Petitioner,
UNITED STATES OF AMERICA, Respondent.
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. [DE 289]. The government has moved to dismiss
the petition. [DE 297]. The matter is ripe for disposition.
For the reasons discussed below, the government's motion
to dismiss [DE 297] is GRANTED and petitioner's motion
[DE 289] is DISMISSED.
2015, following a jury trial, petitioner was convicted of
conspiracy to commit mail fraud, to commit wire fraud, and to
engage in unlawful monetary transactions, in violation of 18
U.S.C. §§ 371, 1341, and 1957(a) (Count One); wire
fraud and aiding and abetting, in violation of 18 U.S.C.
§§ 1343 and 2 (Counts Two, Three, Four, Five, Six,
Eight, Ten, Twelve, Fourteen, and Sixteen); mail fraud and
aiding and abetting, in violation of 18 U.S.C. §§
1341 and 2 (Counts Seventeen, Eighteen, Nineteen, and
Twenty); and engaging in unlawful monetary transactions and
aiding and abetting, in violation of 18 U.S.C. §§
1957 and 2 (Counts Twenty-One, Twenty-Two, and Twenty-Three).
[DE 145]. In January 2016, Judge James C. Fox sentenced
petitioner to a total term of 320 months' imprisonment, 3
years of supervised release, an $1, 800 special assessment,
and $2, 025, 300 in restitution. [DE 199]. Petitioner
appealed, and in November 2017 the Fourth Circuit affirmed.
[DE 273]. In March 2018, the Supreme Court denied certiorari.
August 2018, petitioner filed the instant motion to vacate
under 28 U.S.C. § 2255. [DE 289, 290]. Petitioner
alleges the following: (1) counsel was constitutionally
ineffective in failing to object to the prosecution's use
of certain peremptory jury strikes, (2) counsel was
ineffective in advising petitioner not to accept a plea
agreement and in advising petitioner that he would receive
between 2 and 5 years' imprisonment if he lost at trial,
(3) counsel was ineffective in failing to identify two
alleged instances of prosecutorial misconduct, (4) counsel
was ineffective in failing to challenge the government's
motion in limine, (5) petitioner was denied the counsel of
his choice; (6) counsel was ineffective at petitioner's
pretrial release revocation hearing, (7) counsel was
ineffective in failing to, uncover an alleged discovery
violation, (8) counsel was ineffective in failing to appeal
the revocation of petitioner's pretrial release, (9)
petitioner was deprived of due process when the Court failed
to hold a hearing on his pretrial detention status, (10)
petitioner was deprived of due process as a result of four
alleged errors at trial, (11) counsel was ineffective in
failing to object at sentencing to the use of uncharged and
dismissed conduct, (12) counsel was ineffective in failing to
object to petitioner's restitution amount, (13) appellate
counsel was ineffective in failing to move for panel
rehearing, (14) counsel was ineffective in failing to object
to two incidents described in the presentence report (PSR),
(15) counsel was ineffective in failing to object to the
allegedly false testimony of Mr. Travis Cox, and (16)
petitioner was deprived of a fair criminal proceeding as a
result of the alleged instances of ineffective assistance of
counsel. [DE 290, 291]. The government has moved to dismiss
petitioner's § 2255 petition. [DE 297].
government has moved to dismiss petitioner's motion under
Federal Rule of Civil Procedure 12(b)(6). A Rule 12(b)(6)
motion to dismiss must be granted if the pleading fails to
allege enough facts to state a claim for relief that is
facially plausible. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007); see also Rule 12, Rules
Governing Section 2255 Proceedings (applying the Federal
Rules of Civil Procedure to Section 2255 proceedings).
Additionally, "vague and conclusory allegations
contained in a § 2255 petition may be disposed of
without further investigation by the District Court."
United States v. Dyess, 730 F.3d 354, 359 (4th Cir.
2013) (quoting United States v. Thomas, 221 F.3d
430, 437 (3d Cir. 2000)).
petitioner's claims are premised on ineffective
assistance of counsel under the Sixth Amendment. 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
petitioner's claims of ineffective assistance of counsel
satisfy the high Strickland bar. Petitioner's
first claim, premised on counsel's failure to object to
the government's use of certain peremptory jury strikes,
fails because counsel's decisions as to whether to
challenge the jury selection process is entitled to a high
degree of deference under the first Strickland
prong. Petitioner also has not alleged sufficient facts to
demonstrate that the outcome of his jury selection or of his
jury trial would have been different had counsel objected.
Petitioner's first claim must be dismissed.
second claim fails under the second Strickland
prong. Petitioner alleges that counsel incorrectly told him
that he would only receive 2 to 5 years' imprisonment if
he went to trial and lost. Even taking petitioner's
allegation as true, however, it is plain that petitioner
cannot demonstrate prejudice. At petitioner's
arraignment, Judge Fox said to petitioner, "your
attorney's calculation of your anticipated sentence is
only an estimate and that it is solely the court that will
determine your sentence." [DE 229, p. 6]. During
petitioner's plea colloquy, Judge Fox explained the
minimum and maximum penalties associated with each of
petitioner's charged offenses. [DE 229, p. 18-20].
Petitioner still pleaded guilty and chose to go to trial. As
such, petitioner cannot allege that he would have pleaded
guilty had his counsel advised him of a different sentencing
range, and his second claim must be dismissed.
third claim, that counsel was ineffective in failing to
object to the government allegedly presenting false
testimony, also fails under Strickland. Counsel
cross-examined the witnesses, Mr. Nasir Dukes and Mr. James
Stewart, and asked Mr. Dukes about whether Mr. Stewart had
threatened petitioner or his co-defendant. [DE 154, p. 118].
Additionally, the government presented Mr. Stewart with an
email in which petitioner's co-defendant claimed that Mr.
Stewart had threatened him with physical harm. [DE 155, p.
20]. The Court finds that counsel's decision to impeach
the witnesses rather than object to their allegedly false
testimony was not objectively unreasonable. See
Dyess, 730 F.3d at 365-65 (noting that courts give
"counsel wide latitude in determining which witnesses to
call as part of their trial strategy"). Petitioner's
third claim must be dismissed.
fourth claim, that counsel was ineffective in failing to
challenge the government's motion in limine, must be
dismissed. The government's motion accurately explained
why the Court should exclude, under Federal Rule of Evidence
609, questions relating to embezzlement allegations against
Ms. Priscilla Oates and questions relating to the criminal
history i of Mr. Stewart. [DE 127].
Counsel's decision not to challenge the government's
motion in limine was, therefore, objectively reasonable.
Petitioner's fourth claim must be dismissed.
fifth claim, that he was denied the counsel of his choice,
fails because it was not raised on direct appeal. "Where
a defendant has procedurally defaulted a claim by failing to
raise it on direct review, the claim may be raised in habeas
only if the defendant can first demonstrate either
'cause' and 'actual prejudice' ... or that he
is 'actually innocent.'" Bousley v. United
States, 523 U.S. 614, 622 (1998) (quoting Murray v.
Carrier, 477 U.S. 478, 485, 496 (1986)). Petitioner has
not alleged sufficient facts to demonstrate that he satisfies
either exception, and as such his fifth claim is procedurally
defaulted and must be dismissed.
sixth claim, that counsel was ineffective at petitioner's
pretrial release revocation hearing, fails under the
Strickland prejudice prong. Petitioner has not
alleged sufficient facts to establish that, had his pretrial
release not been revoked, he would not have received ...