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Jones v. United States

United States District Court, M.D. North Carolina

September 24, 2019

DANNY RAY JONES, SR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

         This matter is before the court on Petitioner’s motion to vacate, set aside, or correct sentence made pursuant to 28 U.S.C. § 2255. (Doc. 160.) The Government has filed a response, (Doc. 172), and Petitioner filed a reply, (Doc. 178). The issues are ripe for ruling. For the reasons that follow, this court dismisses petitioner’s motion.

         I. BACKGROUND

         Petitioner was charged in a multicount Indictment alleging a violation of 21 U.S.C. § 846 (Count One) and multiple violations of 21 U.S.C. §§ 841(a)(1) and 860 (Counts Eighteen, Twenty, Twenty-Seven, Twenty-Eight, Twenty-Nine, Thirty, Thirty-One, Thirty-Two, and Thirty-Three). (Indictment (Doc. 13).) 21 U.S.C. § 860 makes it a crime to violate 21 U.S.C. § 841(a)(1) within 1, 000 feet of a protected area, in this case a playground. (See id.) The Indictment also included forfeiture allegations. (Id.)

         Petitioner entered a plea of guilty to Count One, Object One, and Count Twenty on June 4, 2015, pursuant to a written plea agreement. (Plea Agreement (Doc. 107).) On September 15, 2015, Petitioner was sentenced to 168 months of imprisonment on Count One, Object One, and a concurrent 168-month sentence on Count Twenty. (Judgment (Doc. 143); Minute Entry 09/15/2015.) Petitioner did not appeal the sentence. On September 19, 2016, Petitioner filed this motion seeking to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Motion to Vacate, Set Aside or Correct Sentence (“Pet’r’s Mot.”) (Doc. 160).) On October 17, 2016, Petitioner amended his original petition. (Motion to Amend Motion to Vacate, Set Aside or Correct Sentence (“Pet’r’s Am. Mot.”) (Doc. 164).)

         In both the original motion and the amended motion, Petitioner alleges ineffective assistance of counsel in a variety of ways all in relation to sentencing issues.

         Petitioner’s amended motion generally restates those same issues and adds additional arguments as to those issues.

         As a preliminary matter, this court notes Petitioner has not complied with Rule 2 of the Rules Governing Section 2255 Proceedings, which requires that a motion filed pursuant to that section “be signed under penalty of perjury by the movant or a person authorized to sign it for the movant.” Rule 2(b)(5), Rules Governing Section 2255 Proceedings. Although it may be arguable that a district court should allow a Petitioner to supplement the record by submitting the petition under oath or by attaching an affidavit rather than deny the petition, see Kafo v. United States, 467 F.3d 1063, 1068–71 (7th Cir. 2006), this court has concerns about Petitioner’s failure to comply with Rule 2. As will be explained hereafter, some of the positions asserted by Petitioner now are contrary to his prior representations to the court. This court will nevertheless proceed to address the issues on the merits.

         II. ANALYSIS

         A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that “the sentence was imposed in violation of the Constitution or the 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).

         To demonstrate ineffective assistance of counsel, as alleged here, a petitioner must establish: (1) that his attorney's performance fell below a reasonable standard for defense attorneys, and (2) that he was prejudiced by this performance. See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). With respect to the first prong, the petitioner bears the burden of affirmatively showing that his counsel's performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688–89; Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994). With respect to the second prong, the petitioner must show that prejudice resulted from the deficient performance, that is, 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. A reasonable probability is one “sufficient to undermine confidence in the outcome.” Spencer, 18 F.3d at 233 (citing Strickland, 466 U.S. at 694). To obtain a hearing or any form of relief, “a habeas petitioner must come forward with some evidence that the claim might have merit.” Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992), abrog’n on other grounds recog’d, Yeatts v. Angelone, 166 F.3d 255 (4th Cir. 1999). The petitioner “bears the burden of affirmatively proving prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the petitioner fails to meet this burden, a “reviewing court need not even consider the performance prong.” United States v. Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), vacated on other grounds, 218 F.3d 310 (4th Cir. 2000) (en banc).

         Petitioner contends counsel was ineffective for failing to object to certain facts in the Presentence Report. Those facts are described as follows: (1) Petitioner contends the total quantity of drugs was less than that described in Paragraph 41 of the Presentence Report; (2) Petitioner contends he never conducted a drug sale within 1, 000 feet of a protected area; (3) Defendant contends he did not maintain a premises for manufacturing or distributing a controlled substance; (4) Petitioner contends he did not involve an individual less than 18 years of age; (5) Petitioner contends he was not a manager or supervisor; and (6) Petitioner contends counsel did not prepare him for sentencing appropriately. (Pet’r’s Mot. (Doc. 160) at 4-5.) In his amended motion, (Pet’r’s Am. Mot. (Doc. 164)), Petitioner restates these objections but then adds two new arguments. Those two arguments are that counsel “was advised by counsel . . . [that] he would receive no more than seven years in prison, ” (id. at 7), that Petitioner “was entitled to full discovery, ” and that counsel advised “that discovery was not necessary, ” (Id.)

         Petitioner does not challenge his guilty plea nor does Petitioner allege there were any irregularities in his Rule 11 hearing. This court has separately reviewed the Rule 11 transcript, (Transcript of Change of Plea (“Change of Plea Tr.”) (Doc. 169)), and concludes that the guilty plea was knowing and voluntary, and that the hearing complied with Fed. R. Crim. P.

[C]ourts must be able to rely on the defendant's statements made under oath during a properly conducted Rule 11 plea colloquy. . . . Thus, in the absence of extraordinary circumstances, . . . a district court should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the [defendant's] sworn statements.

United States v. Lemaster, 403 F.3d 216, 221–22 (4th Cir. 2005).

         With respect to the guilty plea and the factual basis Petitioner knowingly and willfully entered at the Rule 11 hearing, “[a] movant's ‘declarations in open court carry a strong presumption of verity, ’ and a prisoner found guilty based on a guilty plea is ‘bound by the representations he makes under oath during a plea colloquy’ unless he provides ‘clear and convincing evidence to the contrary.” Colley v. United States, Nos. 1:15-cr-203 (LMB); 1:16-cv-1297 (LMB), 2017 WL 1362031, at *4 (E.D. Va. Mar. 24, 2017) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977) and Fields v. Attorney Gen. of State of Md., 956 F.2d 1290, 1299 (4th Cir. 1992)).

         A. Petitioner’s allegations as to counsel’s advice regarding the length of sentence, the absence of discovery, and counsel’s failure to object to the fact that distribution occurred within 1, 000 feet of a playground

         These issues are frivolous and quickly resolved by reference to the Rule 11 hearing. Petitioner presents no evidence, much less clear and convincing evidence, that his statements under oath should not be binding.

         The Rule 11 hearing establishes that any claims of Petitioner as to counsel’s advice that he would receive no more than seven years in prison and his claim that he was not provided discovery should be dismissed without an evidentiary hearing. During the course of the Rule 11 hearing, this court asked:

THE COURT: And have you fully discussed the charges contained in the indictment and the case in general with your attorney?
DEFENDANT JONES, SR: Yes, sir.
THE COURT: And have you and your attorney discussed any possible defenses you might have to the charges?
DEFENDANT JONES, SR: We’ve discussed everything, sir.

(Change of Plea Tr. (Doc. 169) at 7-8.) Petitioner’s statements given under oath are directly contrary to his claim now that Petitioner did not receive discovery or that he was advised that discovery was not necessary.[1]

         Furthermore, this court inquired as to Petitioner’s understanding of counsel’s advice and any sentence he might receive:

THE COURT: Now, your attorney may have discussed the guidelines with you, and he may have given you some estimate of what he thinks your sentencing guideline range might be or what he thinks your sentence might be. However, no one knows what that sentencing guideline range or sentence will be until after the guideline range has been calculated by the Probation Office in the presentence report, and I have had the opportunity to consider that calculation as well as any objections you or the United States might have.
As a result, do each of you understand that your guideline range and your sentence may be different from any estimate your attorney may have provided to you? Mr. Jones, Sr.?
DEFENDANT JONES, SR: Yes, sir.
. . . .
THE COURT: And do each of you understand that this Court can use a guideline range or impose a sentence that is more severe than any estimated to you by your attorney? Mr. Jones, Sr.?
DEFENDANT JONES, SR: Yes, sir.

(Id. at 21-22.)

         Petitioner’s responses, given under oath at the Rule 11 hearing, are completely contrary to any suggestion that he had some understanding from his attorney that his sentence would be seven years, even if his attorney did in fact provide him with that estimate. Petitioner clearly understood during the Rule 11 hearing that his sentence would be determined by this court in the future, and no one knew what that sentence would be.

         A significant part of the Rule 11 hearing is an explanation by the court to a defendant of the elements of the offense to which he is pleading guilty, insuring a defendant’s clear understanding of those elements. See Fed. R. Crim. P. 11(b)(1)(G) (requiring the court to “determine that the defendant understands . . . the nature of the charge to which the defendant is pleading” before accepting a plea of guilty).

         In this case, Petitioner pled guilty to a violation of 21 U.S.C. § 846 (Count One) and a violation of 21 U.S.C. §§ 841(a)(1) and 860 (Count Twenty). The plea colloquy as to the elements of the offense, Petitioner’s ...


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