United States District Court, E.D. North Carolina, Western Division
LARRY D. HILL, JR., Petitioner,
UNITED STATES OF AMERICA, Respondent.
EARL BRITT, SENIOR U.S. DISTRICT JUDGE
matter is before the court on the government's motion for
summary judgment on petitioner's 28 U.S.C. § 2255
motion, (DE # 99), and several motions petitioner filed
pro se, (DE ## 94, 103, 107).
2016, petitioner pled guilty to possession of a prohibited
object (a phone) in a prison, and the court sentenced him to
two months imprisonment, consecutive to any sentence
petitioner was serving. Petitioner did not appeal. He timely
filed his § 2255 motion, alleging ineffective assistance
of counsel, misconduct of institutional staff impacting the
conditions of his confinement, and deficiencies in a prison
disciplinary hearing against him. On the government's
motion, the court dismissed without prejudice
petitioner's claims based on his conditions of
confinement and the prison disciplinary process. (DE # 93.)
The court allowed the ineffective assistance of counsel claim
to proceed. (Id.) The government now moves for
summary judgment on this claim.
Summary judgments are appropriate in those cases where there
is no genuine dispute as to a material fact and it appears
that the moving party is entitled to a judgment as a matter
of law. [S]ummary judgments should be granted in those cases
where it is perfectly clear that no issue of fact is involved
and inquiry into the facts is not desirable to clarify the
application of law. Moreover, on summary judgment, any
permissible inferences to be drawn from the underlying facts
must be viewed in the light most favorable to the party
opposing the motion. Where, however, the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, disposition by summary judgment is
United States v. Lee, 943 F.2d 366, 368 (4th Cir.
1991) (citations omitted).
prevail on an ineffective assistance of counsel claim,
a person must show (1) that his attorney's performance
“fell below an objective standard of
reasonableness” and (2) that he experienced prejudice
as a result, meaning that there exists “a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S.
668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A
different inquiry is necessary with respect to the prejudice
prong, however, where a conviction is based upon a guilty
plea. In that situation, a person must demonstrate “a
reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on
going to trial.” In discussing “the importance of
protecting the finality of convictions obtained through
guilty pleas, ” the Supreme Court recently declared
that “[s]urmounting Strickland's high bar
is never an easy task.”
United States v. Fugit, 703 F.3d 248, 259 (4th Cir.
2012) (most citations omitted).
§ 2255 motion, petitioner alleges counsel failed to
investigate. (DE # 67, at 4.) Specifically, he claims
1. refused to question the only witness, (Mem., DE # 75, at
2. refused to visit the scene, (id.);
3. refused to investigate the fact that there was more than
one inmate in the housing unit with the same last name as
4. failed to investigate the chain of custody of the
evidence, (Mem., DE # 72, at 1; Notice, DE # 76, at 1);
5. failed to investigate the incoming calls to the subject
phone and to obtain statements from anyone that made those
calls, (Mem., DE # 72, at 1; see ...