United States District Court, E.D. North Carolina, Southern Division
Earl Britt Senior U.S. District Judge.
matter is before the court on the government's motion to
dismiss petitioner's 28 U.S.C. § 2255 motion. (DE #
122.) Petitioner filed a “reply” in opposition to
the motion. (DE # 135.)
2009, petitioner pled guilty to possession of a firearm by a
convicted felon, and the court sentenced him to a term of 360
months imprisonment. Petitioner appealed his conviction and
sentence. The Fourth Circuit Court of Appeals affirmed in
part and dismissed in part. United States v.
Bennett, No. 09-4650 (4th Cir. Aug. 27, 2010).
2016, and after the Fourth Circuit Court of Appeals'
authorization, petitioner filed a § 2255 motion to
vacate his sentence based on the decisions in Johnson v.
United States, 135 S.Ct. 2551 (2015), and United
States v. Gardner, 823 F.3d 793 (4th Cir. 2016). The
government did not oppose the motion. In August 2016, the
court vacated the 2009 judgment and sentenced petitioner to
120 months imprisonment.
2017, the court received a letter from the Bureau of Prisons
(“BOP”) informing the court that petitioner had
requested that his federal sentence of imprisonment be served
concurrently with a state sentence of imprisonment imposed in
2010, “which would be accomplished by the [BOP]
[retroactively] designating the state institution for service
of his federal sentence.” (DE # 105, at 2.) The BOP
requested the court's position on whether
petitioner's federal sentence runs concurrently with or
consecutively to his state sentence. (Id.) According
to the BOP, petitioner's state sentence concluded in
April 2016, and if the court indicated the federal sentence
runs concurrently, the BOP would deem his federal sentence to
start on a date which would result in his immediate release
from the BOP's custody. (Id. at 1, 2.) The court
directed counsel for both parties to file a response to the
letter. (DE # 106.) Petitioner's counsel requested that
the court amend the judgment to include a recommendation that
the federal sentence run concurrently. (DE # 109.) The
government opposed that request. (See DE # 108.) The
court responded to the BOP, stating its intention that
petitioner's federal sentence run consecutively to his
state sentence. (DE # 111.)
February 2018, the court received a letter from petitioner
inquiring about the status of the court's response to the
BOP's 2017 letter. (DE # 112.) By order, the court
informed petitioner of its response to the BOP and denied
petitioner relief to the extent his letter could be deemed a
motion regarding the retroactive designation of his sentence
of imprisonment. (DE # 114.) Petitioner appealed, and the
Fourth Circuit Court of Appeals affirmed, (DE # 136).
meantime, petitioner filed the instant § 2255 motion.
(DE # 119.) Petitioner claims counsel was ineffective
because, in conjunction with petitioner's 2016
resentencing, she misadvised petitioner regarding the amount
of time in custody the BOP would credit towards his federal
sentence and failed to ask the court to run his federal
sentence concurrently with his state sentence. (DE # 119-1,
at 5.) The government contends this claim should be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6).
It is well established that a motion filed under Rule
12(b)(6) challenges the legal sufficiency of a complaint, and
that the legal sufficiency is determined by assessing whether
the complaint contains sufficient facts, when accepted as
true, to “state a claim to relief that is plausible on
its face.” This plausibility standard requires only
that the complaint's factual allegations “be enough
to raise a right to relief above the speculative
Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473,
484 (4th Cir. 2015) (citations omitted). This standard
applies equally to a Rule 12(b)(6) motion challenging a
§ 2255 motion. See Rule 12, Rules Governing
Section 2255 Proceedings (applying the Federal Rules of Civil
Procedure to § 2255 proceedings to the extent such rules
are not inconsistent with any statute or the § 2255
To establish a claim of ineffective assistance of counsel, a
defendant must show (1) that “counsel's performance
was deficient, ” and (2) that “the deficient
performance prejudiced the defense.” To satisfy the
deficiency prong, the defendant must show that counsel's
performance “fell below an objective standard of
reasonableness.” . . . .
Under the prejudice prong, “[t]he defendant must show
that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.”
United States v. Rangel, 781 F.3d 736, 742 (4th Cir.
2015) (citations omitted). A reasonable probability that the
outcome of the defendant's sentencing would have changed
is enough to show prejudice. See id. at 746.
government does not argue that petitioner has failed to
sufficiently alleged counsel's deficient performance.
Rather, it argues that petitioner cannot show he was
prejudiced by counsel's performance. The court agrees.
counsel had correctly advised petitioner about the amount of
time he spent in custody which BOP would credit to his
federal sentence and even if at resentencing she had
requested the federal sentence to run concurrently with the
state sentence, the result would be the same. As the court
indicated to the BOP, it was the court's intent (from the
outset of resentencing) that the federal sentence run
consecutively to the state sentence. Petitioner's counsel
tried, albeit unsuccessfully, to change the court's mind.
Therefore, it made no difference in petitioner's sentence
whether counsel raised the issue at ...