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Daniels v. United States

United States District Court, E.D. North Carolina, Southern Division

October 22, 2019

KRISTOPHER OWEN DANIELS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND RECOMMENDATION

          ROBERT B. JONES, JR. UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the court on the government's motion to dismiss [DE-160] Petitioner Kristopher Owen Daniels's amended motion under 28 U.S.C. § 2255 to vacate, setaside, or correct his sentence [DE-149, -152, -155]. Petitioner responded to the government's motion. [DE-163]. These motions are referred to the undersigned for a memorandum and recommendation to the district court. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Crim.P. 59(b)(1). For the reasons stated below, it is recommended that the government's motion to dismiss be allowed and Petitioner's § 2255 motion be denied.

         I. BACKGROUND

         On September 13, 2016, Petitioner was found guilty by a jury verdict as to counts one, two, three, and four of a four-count superseding indictment. [DE-65, -110]. Count one charged possession with intent to distribute a quantity of cocaine base and a quantity of marijuana in violation of 21 U.S.C. § 841(a)(1). [DE-65] at 1. Count two charged using and carrying a firearm during and in relation to a drug trafficking crime and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Id. at 1-2. Counts three and four charged possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g) and 924. Id. at 2.

         On December 6, 2016, Petitioner appeared before the district court, represented by counsel, for sentencing. [DE-119, -139]. The court sentenced Petitioner to a term of imprisonment of 92 months on each of counts one, three, and four, to be served concurrently, and a term of 60 months on count two, to be served consecutively, producing a total term of 152 months. [DE-130]. Petitioner filed a notice of appeal on December 6, 2016. [DE-121]. On October 3, 2017, the Fourth Circuit Court of Appeals affirmed the criminal judgment. [DE-143].

         On January 29, 2019, Petitioner filed pro se a motion to vacate, set aside, or correct his sentence pursuant to § 2255. [DE-149]. The motion did not substantially follow the form appended to the Rule Governing § 2255 Proceedings, so the clerk directed Petitioner to correct his motion. [DE-151]. On February 21, 2019, Petitioner filed a corrected motions [DE-152]. In Ground One, Petitioner alleged ineffective assistance of counsel for failing to object to count two of the indictment as impermissibly duplicitous, failing to object to the court's jury instruction regarding count two, and failing to request a unanimity instruction as to count two to cure its duplicity. Id. at 4. In Ground Two, Petitioner alleged ineffective assistance of counsel for failing to present insanity as a defense. Id. at 5. On March 18, 2019, Petitioner filed a document which the court labelled as an amended motion, but which appears to be a memorandum in support of his original motion, as it raises the same grounds but offers legal argument. [DE-15 5]. On May 24, 2019, the government filed its motion to dismiss for failure to state a claim upon which relief can be granted [DE-160], to which Petitioner filed a response on June 13, 2018 [DE-163].

         II. LEGAL STANDARDS

         A. 28 U.S.C. § 2255

         After conviction and exhaustion, or waiver, of any right to appeal, courts and the public can presume that a defendant stands fairly and finally convicted. See United States v. Frady, 456 U.S. 152, 164-65 (1982). However, 28 U.S.C. § 2255 provides a means for a defendant convicted of a federal offense to collaterally attack a conviction or sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). "[T]hus § 2255 relief is not limited to constitutional error in a conviction or sentence." United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999). However, where a petitioner seeks relief from a nonconstitutional error, "the scope of review ... is more limited than that of constitutional error; a nonconstitutional error does not provide a basis for collateral attack unless it involves a fundamental defect which inherently results in a complete miscarriage of justice, or is inconsistent with the rudimentary demands of fair procedure." Id. "In a § 2255 proceeding, the burden of proof is on petitioner to establish his claim by a preponderance of the evidence." Toribio-Ascencio v. United States, Nos. 7:05-CR-97-FL, 7:08-CV-211-FL, 2010 WL 4484447, at *l (E.D. N.C. Oct. 25, 2010) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).

         B. Rule 12(b)(6)

         The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint, not to resolve conflicts of fact or to decide the merits of the action. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). However, the '"[f]actual allegations must be enough to raise a right to relief above the speculative level' and have 'enough facts to state a claim to relief that is plausible on its face.'" Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). "[A] plaintiffs obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Twombly, 550 U.S. at 555 (citations omitted). In considering a motion to dismiss, the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Revene v. Charles Cty. Comm'rs, 882 F.2d 870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Moreover, a court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or "arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).

         III. DISCUSSION

         A. Timeliness

         The Government contends that the petition was not timely filed because it was received by the court on January 29, 2019, which is more than one year and ninety days from the date the Court of Appeals judgment was entered. Gov't's Resp. [DE-161] at 2. Petitioner responds that his limitations period expired one year and ninety days from the date the Court of Appeals mandate was issued. Pet'r's ...


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