United States District Court, E.D. North Carolina, Eastern Division
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE.
4:19-CV-2-BO This cause comes before the Court on
petitioner' spro se motion to vacate, correct,
or set aside his sentence under 28 U.S.C. § 2255 [DE
134] and petitioner's motion to proceed in forma
pauperis [DE 138]. The government has moved to dismiss
the § 2255 motion. [DE 146]. The motions are ripe for
disposition. For the reasons discussed below, the
government's motion to dismiss [DE 146] is GRANTED,
petitioner's § 2255 motion [DE 134] is DISMISSED,
and petitioner's motion to proceed in forma
pauperis [DE 138] is DENIED AS MOOT. .
2016, petitioner pleaded guilty, pursuant to a written plea
agreement, to conspiracy to distribute and possess with
intent to distribute 500 grams or more of a mixture and
substance containing a detectable amount of methamphetamine,
in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(a). [DE 67, 68');">68]. In December 2016, Judge James C.
Fox sentenced petitioner to 135 months' imprisonment and
5 years' supervised release. [DE 95]. Petitioner was also
ordered to pay a $1, 250 fine and a $100 special assessment.
Id. Petitioner appealed, and in October 2017 the
Fourth Circuit affirmed his conviction and sentence in an
unpublished opinion. [DE 108, 109].
January 2019, petitioner filed the instant motion to set
aside, vacate, or correct his sentence under 28 U.S.C. §
2255. [DE 134]. Petitioner argues (1) that his counsel was
ineffective in "ma[king] a false promise to [petitioner]
that he would receive a 53 month prison sentence if he
plead[ed] guilty" and promising that he would receive
sentence reductions based on his substantial assistance to
the government; (2) that the government breached its
agreement with petitioner by (a) failing to include in the
plea agreement an "oral promise to decrease at least 2
levels based on [petitioner's] substantial cooperation
with the government," (b) "failing to make a
recommendation for a 5K1.1 downward departure," and (c)
"failing to adhere to its promise that [petitioner]
would receive 53 months' imprisonment"; and (3) that
his appellate counsel was ineffective for raising
ineffective-assistance claims on direct appeal and
"failing to establish the basi[c] standard for review to
establish 'plain error' on the issue relating to the
government's breach of the plea agreement." [DE 134,
p. 4-10]. In February 2019, petitioner filed a motion
stylized as a "Motion in Supplemet [sic] to Application
to Proceed In Forma Pauperis," requesting that he be
relieved from the burden of paying costs associated with his
§ 2255 motion.
government has moved to dismiss petitioner's § 2255
motion under Federal Rule of Civil Procedure 12(b)(6). [DE
146]. The government has also responded in opposition to
petitioner's motion to proceed in forma
pauperis. [DE 138]. Petitioner has not responded in
opposition to the government's motion to dismiss. [DE
outset, petitioner's motion to proceed in forma
pauperis during his § 2255 proceedings must be
denied as moot. There are no filing fees associated with such
a motion, and consideration of petitioner's financial
ability for possible future transcript fees is premature.
Moreover, given that petitioner's § 2255 motion must
be dismissed for failure to state a claim upon which relief
can be granted, the motion to proceed in forma
pauperis must be denied as moot.
government argues that petitioner's § 2255 motion
must be dismissed under Rule 12(b)(6) for failure to state a
claim upon which relief can be granted. 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, 68');">68');">466 U.S. 668');">68 (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 68');">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
first claim, as to hisxtrial counsel's
purported statements about petitioner's potential
sentence, must be dismissed. At petitioner's Rule 11
colloquy, the Court asked petitioner, "Do you understand
that your attorney's calculation of your anticipated
sentence is only an estimate and the Court-it is the Court
that will determine your actual sentence?" [DE 104, p.
10-11]. Petitioner indicated that he did understand that. [DE
104, p. 11');">p. 11]. Petitioner's belated attempt to escape his
plea agreement on the grounds that his trial counsel
inaccurately estimated his sentence must fail. "[A]
defendant's solemn declarations in open court affirming
[a plea] agreement. . . carry a strong presumption of verity
. . . because courts must be able to rely on the
defendant's statements made under oath during a properly
conducted Rule 11 plea colloquy." United States v.
Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (internal
quotation marks and citations omitted). "Thus, in the
absence of extraordinary circumstances, allegations in a
§ 2255 motion that directly contradict the
petitioner's sworn statements made during a properly
conducted Rule 11 colloquy are always palpably incredible and
patently frivolous or false." Lemaster, 403
F.3d at 221 (internal quotation marks omitted). Additionally,
an attorney's inaccurate estimate of a client's
likely sentence does not constitute a violation of the Sixth
Amendment right to effective assistance of counsel under
Strickland. Petitioner's first claim must be
dismissed, given that petitioner affirmed at his Rule 11
colloquy that he understood that counsel's estimates of
his eventual sentence were only estimates and that he
nonetheless intended to plead guilty.
second claim, that the government breached the plea
agreement, must also be dismissed. In fact petitioner raises
three distinct, but related, claims. He argues that the
government (1) did not provide a promised two-level reduction
for substantial cooperation, (2) did not move for a
§5K1.1 reduction, and (3) did not ensure that petitioner
received a promised 53-month sentence. All three claims are
unpersuasive. First, the plea agreement unambiguously states
that it "constitutes the full and complete record of the
Plea Agreement," and that "[t]here are no other
agreements between the parties in addition to or different
from the terms herein." [DE 68');">68, p. 1].
agreement contains no provisions regarding a two-level
reduction for substantial cooperation. There is, therefore,
no basis for affording relief on any alleged oral promise.
Second, the plea agreement further states that the government
was "not promising to move for departure pursuant to
U.S.S.G. §5K1.1." [DE 68');">68, p. 6-7]. Again,
petitioner cannot obtain relief on the grounds that the
government did not provide a §5K, given that he affirmed
under oath his agreement to the terms of the written plea.
Finally, the plea agreement contains no specific promise of a
term of imprisonment--and, indeed, states that "any
estimate of the sentence received from any source is not a
promise"-and, as discussed above, petitioner affirmed at
his Rule 11 colloquy his understanding that the Court and the
Court alone was responsible for his eventual sentence. [DE
68');">68, p. 5]. In sum, just as the Fourth Circuit rejected on
direct appeal petitioner's efforts to obtain relief from
his sentence on the basis of alleged government promises,
petitioner's second claim, too, must be dismissed.
third claim, relating to appellate counsel's alleged
ineffective assistance on direct appeal, must also be
dismissed. Petitioner has failed to allege any facts in
support of his claim to establish that appellate
counsel's conduct fell below an objective standard of
reasonableness, let alone allege any facts demonstrating
that, but for counsel's errors, the outcome of
petitioner's direct appeal would have been different.
Petitioner alleges only that counsel, "by virtue of his
failure to investigate, interview or adhere to his
client['s] explicit instructions," raised an
ineffective-assistance claim against petitioner's wishes.
[DE 134, p. 9]. Petitioner further states that "[i]t is
undisputed that [petitioner] would be unable to raise his
claims on direct appeal," seemingly suggesting that
appellate counsel was ineffective in bringing claims on
direct appeal that he should have known would fail.
Petitioner concludes that "appellate counsel [was]
incompetent to the extent that [petitioner] would not have
pleded [sic] guilty but for counsel's deficient
performance." [DE 134, p. 9]. This is plainly untrue, as
petitioner had pleaded guilty well prior to appellate
counsel's arguments on direct appeal. Petitioner has
alleged no other facts to establish that counsel's
decision to pursue ineffective-assistance claims on direct
appeal was objectively unreasonable, let alone that