United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
matter is before the court on petitioner's motion to
vacate, set aside, or correct sentence, made pursuant to 28
U.S.C. § 2255 (DE 118), as well as the government's
motion to dismiss (DE 130). Where petitioner has not
responded to the motion to dismiss, the issues raised are
ripe for ruling. For the following reasons, the court grants
the government's motion and dismisses petitioner's
October 5, 2016, Petitioner was convicted, after a jury
trial, of possession with intent to distribute a quantity of
heroin and aiding and abetting, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2 (Count
One); possession with intent to distribute 100 grams or more
of heroin, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B) (Count Two); maintaining a place for the purpose of
manufacturing, distributing, or using controlled substances,
in violation of 21 U.S.C. § 856(a)(1) and (b) (Count
Three); and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A) and (c)(1)(A)(i) (Count Four).
December 14, 2016, the court sentenced petitioner to 80
months' imprisonment on Counts One, Two, and Three and 60
months on Count Four to be served consecutively, for a total
term of 140 months' imprisonment. Petitioner appealed and
the appeal was denied on December 20, 2017.
February 26, 2019, petitioner filed the instant motion to
vacate pursuant to 28 U.S.C. § 2255, asserting claims
based upon alleged ineffective assistance of trial counsel.
Standard of Review
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).
establish a claim of ineffective assistance of counsel, a
petitioner must demonstrate both (1) that defense
counsel's performance was deficient, in that
counsel's “representation fell below an objective
standard of reasonableness” as measured by
“prevailing professional norms, ” and (2) that
this deficient performance prejudiced the petitioner.
Strickland v. Washington, 466 U.S. 668, 687-88, 694
(1984). Courts must apply a “highly deferential”
standard in reviewing an attorney's performance and
“must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance.” Id. at 689.
establish prejudice, the petitioner must demonstrate there is
“a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. It
is not sufficient to show the mere “possibility of
prejudice.” Satcher v. Pruett, 126 F.3d 561,
572 (4th Cir. 1997) (quoting Murray v. Carrier, 477
U.S. 478, 494 (1986)). In considering the prejudice prong, a
court “can only grant relief under . . .
Strickland if the ‘result of the proceeding
was fundamentally unfair or unreliable.'”
Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998)
(quoting Lockhart v. Fretwell, 506 U.S. 364, 369
petitioner's claims must be dismissed because they fail
to state facts plausibly raising a claim of ineffective
assistance of counsel or right to relief under § 2255.
Where petitioner argues that his counsel was ineffective by
failing to move for a suppression hearing and/or to suppress
certain evidence introduced during his trial, petitioner has
failed to plausibly allege that the court would have excluded
any of the evidence he complains was introduced. Therefore,
petitioner has failed to demonstrate either that
counsel's performance was deficient or prejudicial.
petitioner argues that counsel was ineffective by failing to
move for a new jury or a dismissal, petitioner provides no
basis for so moving. Similarly, where petitioner suggests
that counsel was ineffective in failing to scrutinize the
case after trial, or in failing to provide trial transcripts,
petitioner has not alleged a plausible basis for a reasonable
probability of a different result. Finally, where petitioner
complains of counsel's performance for purposes of
certiorari review, petitioner fails to state a claim ...