United States District Court, E.D. North Carolina, Eastern Division
Malcolm J. Howard Senior United States District Judge.
matter is before the court on petitioner's motion to
vacate pursuant to 28 U.S.C. § 2255. [DE #48]. The
government responded by filing a motion to dismiss, [DE #54],
to which petitioner filed a response. [DE #59]. Petitioner
also filed a motion to expand the record to include a
declaration regarding his motion to vacate, [DE #50], and a
motion for status conference and permission to allow movant
to appear telephonically. [DE #60]. Petitioner's motion
to expand record to include declaration, [DE #50], is
GRANTED, and petitioner's declaration, [DE #50-1], has
been considered herein. The time for further filing has
expired, and this matter is ripe for adjudication.
September 14, 2015, petitioner pled guilty pursuant to a
written memorandum of plea agreement, to distribution of a
quantity of cocaine within one thousand feet of a school, in
violation of 21 U.S.C. §§ 860(a) and 841(b)(1)(C)
(Count Seven). [DE #32]. On December 8, 2015, the court
sentenced petitioner to a total term of imprisonment of 36
months. Id. Judgment was entered on December 17,
2015. Petitioner filed a notice of appeal, which appeal was
dismissed by unpublished opinion of the Fourth Circuit on
October 20, 2016. [DE #43].
September 15, 2017, petitioner filed the instant motion to
vacate pursuant to 28 U.S.C. § 2255, [DE #48], arguing
two claims of ineffective assistance of counsel.
petitioner alleges his guilty plea was not knowingly,
intelligently, and voluntarily entered because defense
counsel advised him to plead guilty; assured him that the
prosecutor would agree to recommend a sentence based on a
guideline range with a base offense level of 6 from the drug
table; promised petitioner if he pled guilty he would
“do about a year”; and that when petitioner asked
counsel about his criminal history, counsel advised
petitioner that counsel understood petitioner would score in
criminal history category V or VI, and that was factored into
the one year sentence. Petitioner also alleges that counsel
advised him that “the outcome of a plea in this case
would be very favorable - in general terms - because the
Assistant United States Attorney prosecuting the case . . .
was a good friend and colleague.” [DE #49 at 8 n. 6 and
DE #50-1 ¶¶3].
further alleges one of counsel's colleagues brought the
formal plea agreement to the jail, and petitioner refused to
sign because it did not include the sentencing recommendation
or base offense level of 6. Petitioner alleges counsel
informed him that to receive sentencing benefits he had to
accept the plea as written and that counsel assured him that
the prosecutor would support a sentence based on a base
offense level of 6 at sentencing. Finally, petitioner alleges
counsel warned petitioner “that if [he] did not accept
the plea offer promptly, the government would file an 851
notice which would increase [his] sentence
dramatically.” [DE #50-1 ¶8].
alleges this one-year estimate grossly under-represented his
advisory guideline range of imprisonment based on the facts
known to counsel and constituted deficient performance.
Petitioner further alleges that had he been accurately
advised of his true advisory guideline range of imprisonment,
“including the fact that it could be increased based on
relevant conduct drug quantity extrapolations exceeding the
4.9 grams of powder cocaine involved in the offense, [he]
would not have accepted the plea offer, ” but instead
would have proceeded to trial. [DE #50-1 ¶7].
his second claim, petitioner alleges that counsel rendered
ineffective assistance in failing to adequately prepare and
investigate in preparation for sentencing, specifically in
failing to object to “erroneous scoring” of a
1999 conviction for North Carolina Possession with Intent to
Sell and Deliver Cocaine, Maintaining a Dwelling for Purposes
of a Controlled Substance in the presentence investigative
report (“PSR”), [PSR ¶15], [DE #49 at 2-3,
petitioner alleges defense counsel failed to review the PSR
with him, sending a colleague instead and not listening to
petitioner when he informed counsel that the criminal history
category was wrong, and counsel advised him that “we
shouldn't bring that matter up as it would provoke the
prosecutor to deviate from the agreement to use base offense
level 6 from the drug table.” [DE #50-1
¶¶9-10]. Further, petitioner alleges that he does
not believe he was interviewed by a probation officer in
preparation for sentencing. [DE #50-1 ¶9].
develop the factual record on these claims, the court hereby
orders an evidentiary hearing. See U.S. v. Blondeau,
480 Fed.Appx. 241, *242 (4th Cir. 2012) (unpublished) (citing
United States v. Witherspoon, 231 F.3d 923, 925-27
(4th Cir. 2000) (“An evidentiary hearing in open court
is required when a movant presents a colorable Sixth
Amendment claim showing disputed facts beyond the record or
when a credibility determination is necessary in order to
resolve the issue.”).
in light of the referral of this matter to a United States
Magistrate Judge for an evidentiary hearing, petitioner's
motion for status conference and for permission to allow
movant to appear telephonically, [DE #60], is DENIED as moot.
to 28 U.S.C. § 636(b)(1)(B) and Rule 8 of the Rules
Governing § 2255 Proceedings, these claims are referred
to United States Magistrate Judge Kimberly A. Swank to
conduct an evidentiary hearing and to submit a Memorandum and
Recommendation (“M&R”) to the undersigned
concerning petitioner's claims.
Federal Public Defender is directed to assign counsel to
represent petitioner at the hearing. After counsel has been
assigned, he or she shall file a notice of appearance.
Magistrate Judge Swank shall then schedule and hold an
evidentiary hearing, respecting the need of counsel for both
parties to have adequate time for investigation and