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Jones v. United States

United States District Court, M.D. North Carolina

September 30, 2019

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

          MEMORANDUM OPINION AND ORDER

          OSTEEN, JR., DISTRICT JUDGE

         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. 161.) The Government has filed a response, (Doc. 175), and Petitioner has not filed a reply. The issues are ripe for ruling. For the reasons that follow, this court denies on the merits all of Petitioner's claims except his claim that his counsel provided constitutionally ineffective assistance by failing to appeal, as to which claim the court will defer adjudication pending an evidentiary hearing.

         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 Two, Three, Four, Five, Six, Eight, Nine, Ten, Twelve, Thirteen, Fourteen, Sixteen, Seventeen, Nineteen, Twenty, Twenty-One, and Twenty-Two. (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 Two and Count Three on June 4, 2015, pursuant to a written plea agreement. (Plea Agreement (Doc. 108.) On September 15, 2015, Petitioner was sentenced to 132 months of imprisonment on Count One, Object Two, and a concurrent 132-month sentence on Count Three. (Judgment (Doc. 145); 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. 161).) The Government filed a response, (Response to Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence) (“Resp't's Resp.”) (Doc. 175)), and Petitioner did not file a reply. The issues are ripe for ruling.

         In the motion, (Doc. 161), Petitioner alleges ineffective assistance of counsel in a variety of ways all in relation to sentencing issues. (See id.)

         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 raises four grounds in his petition. Those grounds are described as follows: (1) Petitioner contends that his attorney, Walter Holton, Jr. did not file a Notice of Appeal despite Petitioner's request to do so; (2) Petitioner contends that Holton never objected at sentencing to the PSR enhancements under U.S.S.G. § 2D1.1(b)(1) for firearm possession and U.S.S.G. § 2D1.1(b)(12) for drug premises; (3) Petitioner contends that Holton failed to object at sentencing to the PSR's erroneous criminal history points calculation; and (4) Petitioner contends that the court refused to apply U.S.S.G. §§ 5K2.13 and 5H1.3 concerning mental defects at Petitioner's sentencing. (Pet'r's Mot. (Doc. 161) at 4-8.)

         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 (Doc. 169)), and concludes that the guilty plea was knowing and voluntary, and that the hearing complied with Fed. R. Crim. P. 11.

[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. Ground Two: Petitioner's allegations as to counsel's failure to object to adjustments to the Base Offense Level under U.S.S.G. § 2D1.1(b)(1) and 2D1.1(b)(12)

         Petitioner contends counsel was ineffective for failing to object to the firearm adjustment under 2D1.1(b)(1) and to the premises adjustment under U.S.S.G. § 2D1.1(b)(12).

         U.S.S.G. § 2D1.1(b)(1) (2014) provides: “(1) If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.” The application notes provide the following guidance: “The enhancement for weapon possession in subsection (b)(1) reflects the increased danger of violence when drug traffickers possess weapons. The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S. Sentencing Guidelines Manual § 2D1.1, cmt. n.11(A) (U.S. Sentencing Comm'n 2014); United States v. Manigan, 592 F.3d 621, 628 (4th Cir. 2010). “[P]roof of constructive possession of the dangerous weapon is sufficient, and the Government is entitled to rely on circumstantial evidence to carry its burden.” Manigan, 592 F.3d at 629.

         Petitioner contends that he “demanded that Holton Jr. object to the sentencing enhancements in the PSR for firearm possession . . . when Jones was never in possession of any firearms during the offenses he was convicted of.” (Pet'r's Mot. (Doc. 161) at 5.)

         Petitioner's counsel responds as follows:

[A] witness was prepared to testify that certain guns found in a lake on the property where Danny Jones, Jr. lived belonged to Danny Jones, Jr. and, at his request as recorded in a phone conversation from the ...

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