United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
Osteen, Jr., District Judge.
matter is before the court on Petitioner's motion to
vacate, set aside, or correct sentence made pursuant to 2 8
U.S.C. § 2255. (Doc. 91.) The Government has filed a
motion to dismiss and response, (Doc. 96). Petitioner has
filed a reply, (Doc. 99), a motion to amend his reply, (Doc.
101), and a second motion to amend his reply, (Doc. 103).
Petitioner also filed a document entitled
"Plaintiff's Motion for Summary Judgment" and a
related Memorandum on October 17, 2019. (Doc. 107.) That
document in large part restates Petitioner's arguments
already raised in Petitioner's second motion to amend,
(Doc. 103). The motion for summary judgment, (Doc. 107), will
not be addressed separately in this opinion, although it has
been considered by this court and will be denied. The first
motion to amend the reply will granted in part; however, to
the extent the motion seeks to amend the Petition, that will
be denied as futile.
issues are ripe for ruling. For the reasons that follow, the
Petition will be dismissed.
was charged in a fifteen-count Indictment. Petitioner entered
a plea of guilty to Counts One, Two, Three, Four, and Seven
pursuant to a written plea agreement whereby the remaining
ten counts were dismissed. (See Plea Agreement (Doc.
42).) Count One charged a violation of 21 U.S.C. § 846;
Count Two charged a violation of 21 U.S.C. § 856(a)(1);
Count Three charged a violation of 21 U.S.C. §
841(a)(1); Count Four charged a violation of 18 U.S.C. §
924(c)(1)(A)(i); and Count Seven charged a violation of 18
U.S.C. § 922(g)(1). (Indictment (Doc. 1).) The plea
agreement contained, inter alia, the following
It is further agreed by and between the United States and the
defendant, Marlon Cortez Ross, that, in exchange for the
Government's dismissal . . . the defendant, MARLON CORTEZ
ROSS, expressly waives the right to appeal the conviction and
whatever sentence is imposed on any ground . . . and further
to waive any right to contest the conviction or the sentence
in any post-conviction proceeding, including any proceeding
under Title 28, United States Code, Section 2255, excepting
the defendant's right to appeal based upon grounds of (1)
ineffective assistance of counsel
(Plea Agreement (Doc. 42) at 6-9.)
9, 2016, Petitioner was sentenced to a total of 138 months
imprisonment. (See Minute Entry 05/09/2016; Judgment (Doc.
76) at 2.) That total sentence included' sentences of 78
months for Counts One, Two, Three, and Seven, all imposed to
run concurrently. This court imposed a sentence of 6 0 months
as to Count Four and ordered that sentence to run
consecutively as to the sentences imposed on Counts One, Two,
Three, and Seven. (Id.) Petitioner did not appeal
12, 2017, Petitioner filed his Motion to Vacate, Set Aside or
Correct Sentence pursuant to 28 U.S.C. § 2255
("Petition"). (Doc. 91.) Petitioner has not sought
to amend his Petition, but has, on two separate occasions,
requested permission to amend his reply. (See Motion to Amend
Petitioner's Reply to the Government's Response in
Opposition to his § 2255 Motion to Vacate ("First
Mot. to Am.") (Doc. 101); Second of [sic] Motion to
Amend Petitioner's Reply to the Government's Response
in Opposition to his § 2255 Motion to Vacate
("Second Mot. to Am.") (Doc. 103).)
raises the following grounds for relief:
Ground One: "Marlon Ross's criminal judgment
violates due process since it was not intelligent, knowing,
or voluntary," (Petition (Doc. 91) at 4), 
Ground Two: "Defense counsel's inadequate plea-stage
advice denied Mr. Ross the constitutional guarantee of the
assistance of counsel," (id. at 6) .
Ground Three: "Sentencing counsel's deficient
performance denied Mr. Ross his Sixth Amendment guarantee of
the assistance of counsel," (id. at 9).
Ground One is divided into two subparts, and both subparts
are based upon allegations of ineffective assistance of
counsel. Petitioner alleges (1) that counsel failed to advise
him of certain rights and options, and (2) that he did not
know the elements of a § 924(c) charge. (Id. at
5.) Ground Two alleges counsel failed to adequately advise
Petitioner during the plea-bargaining process, and that
counsel erroneously advised Petitioner regarding an alleged
comment about his interracial marriage. (Id. at 7.)
Because Grounds One and Two significantly overlap, those
grounds will be addressed together in this order.
Government responds that the Petition should be dismissed
without an evidentiary hearing. The Government asserts the
waiver contained in Petitioner's plea agreement precludes
Petitioner collaterally attacking a sentencing error that did
not involve a mistake by counsel. (Government's Motion to
Dismiss and Response ("Gov't Resp.") (Doc. 96)
at 2). This court agrees - to the extent Petitioner asserts
any claims that are not excepted by the waivers contained in
the plea agreement, (Plea Agreement (Doc. 42) at 6-9), this
court finds the waiver of post-conviction challenges valid
and binding and will only address those matters raising
claims of ineffective assistance of counsel.
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).
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.
568, 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. Strickland, 466 U.S. at 694.
Prejudice exists when there is a reasonable probability that
but for counsel's unprofessional errors, the result of
the proceeding would have been different. Id. 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).
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's own admissions during a Rule 11 colloquy are
especially important in analyzing a Section 2255 claim. As
the Fourth Circuit put it,
courts 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
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)).
court has separately reviewed the Rule 11 transcript from
Petitioner's Change of Plea Hearing. (Transcript of
Change of Plea ("Change of Plea Tr.") (Doc. 105).)
Comparing those admissions, as well as those made during
Petitioner's sentencing, to Petitioner's current 2255
claims, this court is unpersuaded that Petitioner is entitled
to. relief on any of his three grounds.
Grounds One and Two: Ineffective Assistance of
Grounds One and Two, Petitioner alleges the following basis
for his claims of ineffective assistance of counsel:
1. That Petitioner "believed that if he did not sign the
plea agreement, then he would have been given a life
sentence," (Petition (Doc. 91) at 5);
2. That counsel did not advise Petitioner that he could
"plead guilty to the non-gun charges and take the in
furtherance charge to trial," (id.);
3. That Petitioner "did not understand the options
available to him at the time of the guilty plea, nor did he
know the consequences for the choices he was presented,"
4. That Petitioner "did not know the elements of the
§ 924 charge if he had understood that constructive
possession of a firearm, alone, was insufficient to permit
conviction . . . then he would not have pleaded guilty,"
5. That Petitioner's "counsel breached his duty to
ensure Mr. Ross's decision to plead guilty was
informed," (id. at 7); and,
6. That Petitioner's "[c]ounsel's deficient plea
bargaining advise [sic] also included advise [sic] that Mr.
Ross did not stand a chance because of his inter-racial
(id. at 7).
all of Petitioner's motions and pleadings, it seems that
Petitioner focuses first on Counts One, Two, Three, and Seven
and later focuses more intently on Count Four. For that
reason, the court will first address Petitioner's claims
as to Counts One, Two, Three, and Seven. The court will then
turn to Petitioner's arguments targeted at Count Four.
Counts One, Two, Three, and Seven
Counts One, Two, Three, and Seven, Petitioner has not
presented any facts which would support the requested relief.
As noted above, Petitioner's current allegations, to the
extent they are directed to those counts, should be
initial matter, Petitioner's ineffective assistance of
counsel arguments also implicate an argument that his plea
was not knowing and voluntary. Even an appeal waiver does not
cut off a petitioner's right to challenge the
voluntariness of a guilty plea. United States v.
McCoy, 895 F.3d 358, 364 (4th Cir.), cert,
denied, ___U.S.___, 139 S.Ct. 494 (2018) (noting that a
waiver of appeal rights does not cut off a petitioner's
right to challenge the validity of the plea itself when the
petitioner challenges the underlying factual basis}. Such a
challenge, however, is not normally available to a Section
2255 petitioner unless they first raised any issues of
voluntariness on direct appeal. Bousley v. United
States, 523 U.S. 614, 621-22 (1998). "To overcome
this procedural bar, Petitioner would be required to
demonstrate either cause and actual prejudice or that he is
actually innocent." Carrasco v. United States,
No. 3:16-cv-298-RJC, 3:13-cr-199-RJC-1, 2016 WL 6023539, at
*5 (W.D. N.C. Oct. 13, 2016) (citing Bousley, 523
U.S. at 622). Here, Petitioner did not ever appeal his guilty
plea, and he offers no reason as to why, only that his
"attorney did not file an appeal." (Petition (Doc.
91) at 14.) Further, Petitioner does not argue that there are
some facts that have come to light since his Rule 11 hearing
that were not available to him during his appeal window.
Finally, whatever actual innocence claims Petitioner attempts
to make are time-barred and factually insufficient, as will
be explained below.
though any attempt by Petitioner to raise a collateral attack
against the voluntariness of his plea is procedurally barred,
such an attack would fail even if it was allowed. Petitioner
has presented no facts to support a finding that his guilty
plea was not knowing and intelligent. See Fed. R.
Crim. P. 11(b); United States v. DeFusco, 949 F.2d
114, 116, 119-20 (4th Cir. 1991) . During the Rule 11
hearing, Petitioner stated that he understood the statutory
penalties applicable upon conviction as to each of those
offenses, (Change of Plea Tr. (Doc. 105) at 9-14), and that
he understood the elements of each of ...