United States District Court, E.D. North Carolina, Western Division
CHRISTIAN G. RHODES, Petitioner,
UNITED STATES OF AMERICA, Respondent.
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. [DE 56]. The government has moved to dismiss the
petition. [DE 63]. The matter is ripe for disposition. For
the reasons discussed below, the government's motion to
dismiss [DE 63] is GRANTED and petitioner's § 2255
motion [DE 56] is DISMISSED.
2015, petitioner pleaded guilty, pursuant to a written plea
agreement, to one count of conspiracy to defraud the
government, in violation of 18 U.S.C. § 286, and one
count of aggravated identity theft, in violation of 18 U.S.C.
§ 1028A. [DE 28, 29]. In September 2015, the Court
sentenced petitioner to 144 months' imprisonment, which
represented an upward departure from his guideline range.
Petitioner appealed, arguing that the upward departure was
procedurally and substantively unreasonable. The Fourth
Circuit affirmed in an unpublished opinion. United States
v. Rhodes, 665 Fed.Appx. 275 (4th Cir. 2016). The
Supreme Court denied cert on April 17, 2017.
April 2018, petitioner filed the instant motion under 28
U.S.C. § 2255. [DE 56]. Petitioner claims his defense
counsel was ineffective because (1) she allegedly did not
inform him of the possibility that the sentencing judge could
make an upward departure; and (2) she did not object to the
upward departure during the sentencing proceedings. [DE 56,
p. 5-11]. The government moves to dismiss petitioner's
§ 2255 motion. [DE 63], DISCUSSION
government moves to dismiss petitioner's motion under
Federal Rule of Civil Procedure 12(b)(6). A Rule 12(b)(6)
motion to dismiss must be granted if the pleading fails to
allege enough facts to state a claim for relief[.] Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);
see also Rule 12, Rules Governing Section 2255
Proceedings (applying the Federal Rules of Civil Procedure to
Section 2255 proceedings). Additionally, "vague and
conclusory allegations contained in a § 2255 petition
may be disposed of without further investigation by the
District Court." United States v. Dyess, 730
F.3d 354, 359 (4th Cir. 2013) (quoting United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
claims are premised on the Sixth Amendment's right to
effective counsel in criminal proceedings. Under
Strickland v. Washington, 466 U.S. 668 (1984),
petitioner must show "that counsel's performance
fell below an objective standard of reasonableness."
Sharpe v. Bell, 593 F.3d 372, 382 (4th Cir. 2010)
(internal quotation marks omitted). A court's
"scrutiny of counsel's performance must be highly
deferential." Id. In fact, there is a
'"strong presumption' that a trial counsel's
strategy and tactics fall 'within the wide range of
reasonable professional assistance.'" United
States v. Roane, 378 F.3d 382, 404 (4th Cir. 2002)
(quoting Strickland, 466 U.S. at 689). Petitioner
must further show 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.
Petitioner's claims can only succeed if he establishes
both that his counsel's performance fell below an
objective standard of reasonableness and that, but for
counsel's errors, the result would have been different.
petitioner has failed to show that his counsel's
performance fell below an objective standard of
reasonableness. Petitioner's counsel negotiated a plea
agreement that dismissed 21 of 23 counts charged in the
indictment. During sentencing, his counsel made extensive
arguments for a downward departure, explaining
petitioner's troubled upbringing, providing context for
his criminal history, and highlighting sentences imposed on
similarly situated defendants. Petitioner's claim that
his counsel should have objected to the sentence imposed has
no merit. His counsel advocated vigorously for a downward
departure and her performance did not fall below professional
claim that he did not have notice of the possibility of an
upward departure also fails. The written plea agreement
explicitly states that the Court was not bound by the
guidelines. During his plea colloquy, petitioner acknowledged
his understanding of the plea agreement and his understanding
that the terms of the plea agreement did not bind the Court.
Moreover, the possibility of an upward departure was
specifically raised by the sentencing judge when discussing
petitioner's rights on appeal.
short, petitioner has failed to demonstrate that his
counsel's performance fell below an objective standard of
reasonableness or that the outcome of the proceedings would
have been different.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). As
reasonable jurists would not find this Court's dismissal
of petitioner's § 2255 motion debatable, a
certificate of appealability is DENIED.
above reasons, the government's motion to dismiss [DE 63]
is GRANTED and petitioner's § ...