United States District Court, E.D. North Carolina, Western Division
MALCOLM J. HOWARD SENIOR UNITED STATED DISTRICT JUDGE
matter is before the court on the government's motion to
dismiss [DE #40] petitioner's § 2255 motion for
failure to state a claim upon which relief can be granted.
Petitioner has responded [DE #43] to the government's
motion, and this matter is ripe for adjudication. Petitioner
also filed a motion for preliminary hearing [DE #44], which
the court denies in light of the findings herein. Petitioner
filed a motion to amend his motion to vacate [ DE ## 4 9 and
50] which the court grants and considers herein. Finally,
petitioner filed motions [ DE ## 4 7 and 52] to amend this
court's order granting in part and denying in part a
motion for production of documents. Finding no reason to
alter or amend its prior order, these motions are denied.
OF THE CASE
September 12, 2016, petitioner pled guilty, pursuant to a
written plea agreement, to being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924. He was sentenced by this court on December 6, 2016, to a
term of imprisonment of 96 months. Petitioner did not appeal.
On July 21, 2017, petitioner filed this timely motion to
vacate pursuant to 28 U.S.C. § 2255.
petitioner raises the following claims, all alleging
ineffective assistance of counsel: (1) that his counsel
failed to challenge that he committed his offense subsequent
to sustaining at least two felony convictions for a crime of
violence or controlled substance offense, affecting his base
offense level under USSG § 2k2.1 (a)
(2); (2) that his counsel failed to
challenge the four-level enhancement to his offense level
based on USSG § 2K2'. 1 (b) (1) (6) (B); and (3)
that his counsel should have investigated and presented
mitigating evidence about his impaired mental condition at
the time of the offense.
prove ineffective assistance of counsel, petitioner must
satisfy the dual standards of Strickland v.
Washington, 466 U.S. 668 (1984). First, petitioner must
show that counsel's performance was deficient in that it
fell below the standard of reasonably effective assistance.
Id. at 687-91. In making this determination, there
is a strong presumption that counsel's conduct was within
the wide range of reasonable professional assistance.
Id. at 689. Second, petitioner "must show that
there is a reasonable probability that, but for counsel's
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Id. at 694.
must make "every effort ... to eliminate the distorting
effects of hindsight," Strickland, 466 U.S. at
689, and to evaluate an attorney's performance "from
counsel's perspective at the time of the alleged error
and in light of all the circumstances," United
States v. Roane, 378 F.3d 382, 410 (4th Cir. 2004)
(citing Kimmelman v. Morrison, 477 U.S. 365, 381
(1986)). "Because of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action 'might be considered sound trial
strategy.'" Strickland, 466 U.S. at 689
(quoting Michel v. Louisiana, 350 U.S. 91, 101
detailed in the government's memorandum in support of its
motion to, dismiss., petitioner's first claim fails
because he did sustain two convictions for a controlled
substance offense prior to the commission of the instant
offense, both which were punishable by terms of imprisonment
exceeding one year, resulting in a base offense level of 24
under USSG 2K2.1(a)(2). [See PSR ¶¶ 29-30, 31].
Four Level Enhancement
claim that his counsel failed to challenge the four-level
enhancement to his offense level based on USSG §
2K2.1(b) (1) (6) (B) is without merit as counsel did object
in writing to the enhancement in the draft PSR. Therefore,
this claim is without merit.
petitioner argues his counsel was ineffective for failing to
investigate and present information on his mental status at
the time of the offense to the court as mitigating evidence.
Petitioner has not shown what evidence of mental health
problems existed that could have been presented to the court.
While he indicates he has been diagnosed with post traumatic
stress disorder (PTSD) and schizophrenia, records obtained by
the probation officer for the PSR did not confirm a
schizophrenia diagnosis. There was a possible diagnosis of
PTSD, which the court was made aware of through the ...