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Ross v. United States

United States District Court, M.D. North Carolina

October 22, 2019

MARLON CORTEZ ROSS, 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 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.

         The issues are ripe for ruling. For the reasons that follow, the Petition will be dismissed.

         I. BACKGROUND

         Petitioner 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 provision:

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.)

         On May 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 the sentence.

         On May 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).)

         Petitioner 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), [1]
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.

         The 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.[2]

         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. 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).

         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).

         A 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 Cir. 2005).

         "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)).

         This 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.

         A. Grounds One and Two: Ineffective Assistance of Counsel

         Within 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," (id.);
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," (id.);
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 marriage, "

(id. at 7).

         Reviewing 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.

         1. Counts One, Two, Three, and Seven

         As to 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 dismissed.

         As an 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.

         Even 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 ...


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