United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
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.
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.)
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.
the original motion and the amended motion, Petitioner
alleges ineffective assistance of counsel in a variety of
ways all in relation to sentencing issues.
amended motion generally restates those same issues and adds
additional arguments as to those issues.
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
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).
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).
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)
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,
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).
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)).
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
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.
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
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,
DEFENDANT JONES, SR: Yes, sir.
(Id. at 21-22.)
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
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
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,