United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter comes before the court on petitioner's motion to
vacate, set aside, or correct sentence under 28 U.S.C. §
2255 (DE 33), and respondent's motion to dismiss for
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) (DE 37). Pursuant to 28 U.S.C. §
636(b)(1) and Federal Rule of Civil Procedure 72(b), United
States Magistrate Judge Robert B. Jones, Jr., conducted an
evidentiary hearing and entered a memorandum and
recommendation (M&R), wherein it is recommended that the
court deny petitioner's motion and allow respondent's
motion (DE 58). Petitioner filed several objections to the
M&R. In this posture, the issues raised are ripe for
ruling. For the reasons that follow, the court denies
petitioner's motion, allows respondent's motion, and
denies a certificate of appealability.
September 27, 2016, petitioner was indicted for one count of
conspiracy to possess with intent to distribute cocaine in
violation of 21 U.S.C. §§ 841(a)(1) and 846. With
the benefit of a plea agreement, petitioner pleaded guilty to
the charge at hearing November 15, 2016. (Transcript of Plea
Hearing (“Plea Tr.”) (DE 43)). On March 8, 2017,
petitioner was sentenced to 60 months in prison, to be served
consecutively to the term imposed in a prior proceeding.
(Judgment (DE 27)). Defendant did not appeal his conviction.
was represented by Soyna Allen (“defense
counsel”), an assistant federal public defender, at his
arraignment and sentencing. On July 24, 2017, petitioner
filed the instant motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. Petitioner claims
defense counsel violated his Sixth Amendment right to counsel
by providing ineffective assistance during his case.
court referred petitioner's motion to the magistrate
judge for M&R. The magistrate judge conducted an
evidentiary hearing on April 9, 2018. (Transcript of §
2255 Hearing (“§ 2255 Tr.”) (DE 56). The
magistrate judge heard testimony from petitioner and defense
counsel, and considered documentary evidence. Following
hearing, the magistrate judge recommended denying
petitioner's claims on the merits, based on findings of
fact and determinations of law set forth in the M&R.
Petitioner filed objections to the M&R.
Standard of Review
district court reviews de novo those portions of a magistrate
judge's M&R to which specific objections are filed.
28 U.S.C. § 636(b). The court does not perform a de novo
review where a party makes only “general and conclusory
objections that do not direct the court to a specific error
in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Absent a specific and timely filed
objection, the court reviews only for “clear error,
” and need not give any explanation for adopting the
M&R. Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful
review of the record, “the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
petitioner seeking relief pursuant to 28 U.S.C. § 2255
must show that “the sentence was imposed in violation
of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). “Unless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues and make
findings of fact and conclusions of law with respect
thereto.” Id. § 2255(b). “The
Federal Rules of Civil Procedure and the Federal Rules of
Criminal Procedure, to the extent that they are not
inconsistent with any statutory provisions, or the [§
2255 Rules], may be applied to” § 2255
proceedings. Rules Governing Section 2255 Proceedings, Rule
seeks § 2255 relief for ineffective assistance of
counsel. To sustain an ineffective assistance of counsel
claim, petitioner must demonstrate defense counsel's
performance fell below an objective standard of
reasonableness and there is a reasonable probability that
defense counsel's deficient performance prejudiced
petitioner. See Strickland v. Washington, 466 U.S.
668, 687-88, 694 (1984); Merzbacher v. Shearin, 706
F.3d 356, 363 (4th Cir. 2013). Petitioner raises two grounds
for his ineffective assistance of counsel claim: 1) defense
counsel should have challenged the basis for his guilty plea,
and 2) that defense counsel should have appealed his
conviction. The court addresses each ground for relief below.
Basis for Conviction
evaluating allegations of deficiency, “[c]ourts indulge
a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance, in
order to avoid the distorting effects of hindsight.”
Merzbacher, 706 F.3d at 363 (4th Cir. 2013)
(internal quotation marks and citations omitted). To prove
prejudice, petitioner “must show that there is a
reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S.
52, 59 (1985). “[P]etitioner must convince the court
that a decision to reject the plea bargain would have been
rational under the circumstances.” Padilla v.
Kentucky, 559 U.S. 356, 372 (2010). “The
challenger's subjective ...