JAMES E. GATES, Magistrate Judge.
This case comes before the court, in part, on the motion (D.E. 36) by the government to dismiss the petition
On 24 October 2013, petitioner was charged in a two-count indictment (D.E. 1) with possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (count one), and failure to register as a sex offender, in violation of 18 U.S.C. § 2250 (count two). On 21 February 2014, pursuant to a plea agreement (D.E. 19), petitioner pleaded guilty to the firearm charge in count one of the indictment with the remaining count to be dismissed at sentencing. See Minute Entry on R. 11 Hrg. (D.E. 20). At sentencing on 4 June 2014 (see Minute Entry on Sent. Hrg. (D.E. 26)), the court adopted the Presentence Investigation Report ("PSR") (Statement of Reasons (D.E. 30) 1) and sentenced petitioner to a term of 180 months' imprisonment and five years' supervised release (see J. (D.E. 29) 1-3).
In imposing its sentence, the court found petitioner to be an armed career criminal — that is, subject to the sentence enhancement — under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). It provides in relevant part that a person who is found guilty of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g) is subject to an enhanced penalty of 15 years' to life imprisonment if he has "three previous convictions [for] . . . a serious drug offense . . . committed on occasions different from each other." 18 U.S.C. § 924(e)(1). Without the enhancement, the prescribed term of imprisonment would be no more than 10 years. See id. § 924(a)(2). The three convictions underlying the court's finding, as set out in the PSR, are: a 10 June 2002 conviction in a Pennsylvania court for conspiracy to deliver cocaine, based on petitioner's selling cocaine to a confidential informant on 27 May 1998; a conviction on the same date in the same case for delivery of crack cocaine, based on petitioner's selling crack cocaine to a confidential informant on 13 October 1998; and an 8 April 2009 conviction in the same court for possession of heroin with intent to deliver, based on petitioner's selling heroin to a cooperating witness on 9 August 2008.
In his petition, executed under penalty of perjury,
By his motion to amend, petitioner seeks to assert an additional claim that his sentence is unconstitutional in light of United States v. Johnson, 135 S.Ct. 2551 (2015). Mot. to Amend.
Pursuant to § 2255, a prisoner may seek correction or vacation of a sentence on the grounds that: (1) the sentence was imposed in violation of the Constitution or 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). A § 2255 motion must be filed within one year from the latest of:
28 U.S.C. § 2255(f).
"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-00097-FL, 7:08-CV-211-FL, 2010 WL 4484447, at *1 (E.D.N.C. 25 Oct. 2010) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)). Generally, an evidentiary hearing is required under § 2255 "[u]nless it is clear from the pleadings, files, and records that the prisoner is not entitled to relief." United States v. Rashaad, 249 F. App'x 972, 973 (4th Cir. 2007) (citing Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970)).
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of claims for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A court may consider a motion to dismiss pursuant to Rule 12(b)(6) challenging the legal sufficiency of a § 2255 motion. See United States v. Reckmeyer, No. 89-7598, 1990 WL 41044, at *4 (4th Cir. 2 Apr. 1990); Rule 12, § 2255 Rules (expressly permitting application of the Federal Civil Rules where "they are not inconsistent with any statutory provisions or these [§ 2255] rules"); Fed. R. Civ. P. 81(a)(4) (providing that the Federal Rules of Civil Procedure may be applied in § 2255 proceedings where a particular practice has not been specified by § 2255 and where such practice has "previously conformed to the practice in civil actions"); see also Walker v. True, 399 F.3d 315, 319 (4th Cir. 2005) (vacating district court's order allowing the government's motion to dismiss petitioner's motion under 28 U.S.C. § 2254 ("§ 2254")
A motion to dismiss should be granted only if "it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). In analyzing a Rule 12(b)(6) motion, a court must accept as true all well-pleaded allegations of the challenged pleading. Nemet Chevrolet Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (court must accept as true all factual allegations of the complaint). All reasonable factual inferences from the allegations must be drawn in the plaintiff's favor. Kolon Indus., Inc., 637 F.3d at 440 (citing Nemet Chevrolet Ltd., 591 F.3d at 253). However, case law requires that the factual allegations create more than a mere possibility of misconduct. Coleman v. Md. Ct. of App., 626 F.3d 187, 190 (4th Cir. 2010) (citing Iqbal, 556 U.S. at 679). The allegations must contain "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Likewise, a pleading purporting to assert a claim is insufficient if it offers merely "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555 (internal quotation marks omitted)).
As previously discussed, § 2255 proceedings are, in general, governed by the Federal Rules of Civil Procedure. See Rule 12, § 2255 Rules; Fed. R. Civ. P. 81(a)(4). Moreover, 28 U.S.C. § 2242 specifically provides that a § 2255 petition "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242; see also United States v. MacDonald, 641 F.3d 596, 616 n.12 (4th Cir. 2011) ("Rule 15 is applicable to § 2255 motions by way of 28 U.S.C. § 2242, Federal Rule of Civil Procedure 81(a)(4), and Rule 12 of the [§ 2255 Rules].").
Where, as here, more than 21 days have passed after service of the government's motion to dismiss, Rule 15(a)(2) permits amendment of the petition only with the government's written consent or leave of court. Fed. R. Civ. P. 15(a)(2). The Rule further provides that the court "should freely give leave when justice so requires." Id. Rule 15 is a "liberal rule [that] gives effect to the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities." Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006); Intown Props. Mgmt., Inc. v. Transcom, Ins. Co., 271 F.3d 164, 170 (4th Cir. 2001) (holding that Rule 15 should be construed liberally "so that claims can be adjudicated on the merits"). Leave to amend is to be granted in the absence of "bad faith, undue prejudice to the opposing party, or futility of amendment." United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000) (internal citations omitted). An amendment is deemed to be futile if it would not withstand a motion to dismiss. See Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995) (holding that if an amended complaint could not withstand a motion to dismiss, the motion to amend should be denied as futile).
To state a claim of ineffective assistance of counsel, a petitioner must satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). First, a petitioner must show that the representation he received fell below an objective standard of reasonableness. Id. at 688. The reviewing court must be "highly deferential" of counsel's performance and must make every effort to "eliminate the distorting effects of hindsight." Id. at 689. Therefore, the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. Concerning the second prong, a petitioner must show that he was prejudiced by the ineffective assistance. Id. In the sentencing context, "[p]rejudice exists when an error results in a longer sentence than would otherwise have been imposed. United States v. Smith, 497 F. App'x 269, 272 (4th Cir. 2012). With respect to a guilty plea, a petitioner must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
The court has considered the record in this case and applicable authority to determine whether an evidentiary hearing is needed to resolve the matters before the court. The court finds that the existing record clearly shows that petitioner is not entitled to relief on his claims and that an evidentiary hearing is not needed. The court will therefore proceed without an evidentiary hearing.
The government questions the timeliness of the petition, but does not challenge it. The issue of timeliness having been raised, the court will address it.
Pursuant to § 2255(f)(1), petitioner had one year to file a petition from the date on which his judgment of conviction became final. Here, petitioner had 14 days after the district court entered its judgment on petitioner's sentence on 4 June 2014 in which to file an appeal, which was 18 June 2014 (see D.E. 29). See Fed. R. App. P. 4(b)(1)(A) (requiring a defendant to file a notice of appeal within 14 days after the entry of judgment). The district court's judgment therefore became final the following day, 19 June 2014, and petitioner's § 2255 petition had to be filed a year later, by 19 June 2015. See United States v. Osborne, 452 F. App'x 294, 295 (4th Cir. 2011) (pursuant to § 2255(f)(1), petitioner "was required to file his § 2255 motion within one year from the date on which his judgment of conviction became final by the conclusion of direct review or expiration of the time for seeking such review" (citing Clay v. United States, 537 U.S. 522, 532 (2003))).
Under penalty of perjury, petitioner stated he placed his petition in the prison mailing system on 10 June 2015. Pet. 13. A document filed by a prisoner acting pro se is deemed filed on the date it is delivered to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988); see also Ransom v. United States, Nos. 7:14-CR-108-FL-1, 7:16-CV-97-FL, 2017 WL 2312894, at *3 n.2 (E.D.N.C. 26 May 2017). A stamp on the envelope that contained the petition indicates that it was processed through the prison post office on 30 June 2015. See Envelope (D.E. 32-1) 2. This date is not necessarily inconsistent with the delivery date asserted by petitioner, and the court finds it insufficient to discredit the delivery date asserted by petitioner. Because petitioner delivered his petition to prison authorities for mailing prior to 19 June 2015, the court deems the petition to have been filed timely.
Petitioner's claims suffer from multiple flaws. One flaw is that they are impermissibly conclusory. As stated in the petition, the claims read in their entirety:
Pet. 4 (spelling and punctuation original). These scant allegations manifestly fail to state a claim.
In his response (D.E. 40) to the government's motion to dismiss, petitioner sets out additional allegations, but they relate only to his first claim regarding his armed career criminal status. As noted, two of the three convictions underlying the court's determination that petitioner was an armed career criminal were, according to the PSR, imposed in 2002 in the same case for, respectively, conspiracy to deliver cocaine, based on a transaction on 27 August 1998, and delivery of crack cocaine, based on a transaction on 13 October 1998. See PSR ¶¶ 10-11. In his response, petitioner alleges that the PSR is incorrect and that these offenses
Pet.'s Response 2. He argues that the armed career enhancement therefore did not apply to him.
As noted, for prior convictions to qualify for the ACCA enhancement, they must be based on offenses "committed on occasions different from one another." 18 U.S.C. § 924(e)(1). Convictions satisfy this requirement "if each of the prior convictions arose out of a separate and distinct criminal episode." United States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995) (internal quotation marks omitted). Factors courts consider in determining whether offenses represent separate and distinct criminal episodes include, without limitation, whether they arose in different geographical locations, whether the nature of the offenses was substantially different, whether the offenses involved multiple victims, whether the offenses involved multiple criminal objectives, and whether the offenses were committed at the same time. Id. at 335-36.
In claiming that his two convictions in 2002 did not occur on separate occasions, petitioner sets out only conclusory allegations. He cites no facts supporting his contentions and merely tracks factors a court may consider to determine whether convictions occur on occasions different from one another.
Because of their conclusory nature, petitioner's claims fail to state a claim upon which relief can be granted and, specifically, to satisfy either the deficient performance or prejudice prong under Strickland. They are therefore subject to dismissal. See Sanders v. United States, 373 U.S. 1, 19 (1963) (finding summary denial of habeas action appropriate where petitioner "stated only bald legal conclusions with no supporting factual allegations"); see also United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) ("[V]ague and conclusory allegations contained in a § 2255 petitioner may be disposed of without further investigation by the District Court." (citations and internal quotations marks omitted)).
Claim one also fails on the merits. Even if the various factors cited by petitioner were true for the two offenses at issue — occurrence on the same date, at the same location, and against the same victim, and charged and sentenced together — they would not necessarily establish that they were not separate and distinct criminal episodes qualifying as predicate offenses under the ACCA. See, e.g., Letterlough, 63 F.3d at 335-36 (holding that criminal offenses committed hours apart may constitute separate criminal episodes for purposes of enhancement under the ACCA).
Moreover, public records from the court of conviction, the Criminal Division of the Court of Common Pleas of Northampton County, Pennsylvania, confirms that the two convictions are based on offenses committed on different occasions. The court takes judicial notice of these records, copies of which are attached hereto, pursuant to Fed. R. Evid. 201.
In case no. CP-48-CR-41-1999, the criminal information, also dated 20 January 1999, charged delivery of cocaine on 13 October 1998. See Case no. CP-48-CR-41-1999 Records (Attachment B hereto) 2. The information states that petitioner delivered cocaine to a confidential information on the offense date. Id. A police criminal complaint, dated 9 November 1998, sets out details regarding the sale. Id. at 4. There is also a written plea of guilty to this charge apparently signed by defendant and his then-attorney. Id. at 3.
The information in the records from the court of conviction confirms the accuracy of the information in the PSR regarding the two offenses involved. See PSR ¶¶ 10, 11. Again, petitioner makes no allegations impeaching the accuracy of the information in the records or the PSR. Petitioner has therefore failed to adequately show deficient performance by his counsel or prejudice from her not objecting to treatment of these offenses as predicate offenses for the enhancement under the ACCA.
Further, claim two — that counsel was ineffective for failing to investigate petitioner's background and present mitigating evidence at sentencing — fails for two additional reasons. First, to prevail on a claim for failure to investigate a petitioner must identify what an adequate investigation would have revealed. See Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996) ("[A]n allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence of testimony would have been produced." (citing Bassette v. Thompson, 915 F.2d 932, 940-41 (4th Cir. 1990))). Petitioner made no showing of what a purportedly proper investigation would have revealed.
Second, petitioner received the statutory minimum of 15 years' imprisonment for a defendant enhanced under the ACCA. The court could have imposed a lower sentence only upon a motion by the government "reflect[ing] a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense." 18 U.S.C. § 3553(e). There was no such motion by the government. Nor did petitioner make any allegations that he provided any assistance that might have been the basis for such a motion. Thus, petitioner did not show in his petition that any presentation of mitigating circumstances by his counsel could have lowered his sentence. In sum, for these additional reasons, claim two fails to show either deficient performance or prejudice under Strickland.
Claim three — that counsel failed to fully explain the consequences of petitioner's guilty plea — is deficient not only because of its conclusory nature, but because at his Rule 11 hearing the court comprehensively explained to petitioner the consequences of his guilty plea and he told the court under oath that he understood the court's explanation. See Rule 11 Hrg. Recording at 11:16 to 11:24; 12:01 to 12:04. Petitioner is bound by that representation. See Blackledge v. Allison, 431 U.S. 63, 74 (1977); United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2015). Petitioner has therefore failed to show any prejudice as the result of any failure by his counsel to adequately explain the consequences of his guilty plea.
For this and the other reasons stated, petitioner's claims should be dismissed in their entirety.
In his motion to amend, petitioner seeks to add a claim challenging the ACCA enhancement on the basis of the Supreme Court's decision in Johnson. Petitioner's proposed claim fails.
The holding in Johnson does not apply to petitioner's case. The ACCA provides for the armed career criminal enhancement when a person convicted of violating 18 U.S.C. § 922(g) "has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1). As discussed, petitioner received the enhancement because of three previous convictions for serious drug offenses. Johnson addressed enhancements based on certain prior convictions for violent felonies. Specifically, it held that the residual clause in the definition of "violent felony," providing for inclusion of an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another," was unconstitutionally vague. Johnson, 135 S. Ct. at 2563. The Supreme Court subsequently held that Johnson was a substantive decision that had retroactive effect in cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016).
Because the holding in Johnson does not provide a basis for vacating petitioner's sentence, petitioner's motion to amend the petition to assert a claim under Johnson is futile. It should accordingly be denied as such.
For the foregoing reasons, IT IS RECOMMENDED that petitioner's motion (D.E. 47) to amend be denied, the government's motion (D.E. 37) to dismiss be GRANTED, and petitioner's petition (D.E. 32) be DISMISSED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 7 November 2017 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
Any responses to objections shall be filed within 14 days after the filing of objections.
SO ORDERED.
Petitioner does not contend that he is factually innocent of the predicate crimes used to enhance him under the ACCA. In fact, his response confirms his commission of the offenses underlying the 2002 convictions. He merely argues that the convictions were improperly classified as predicates for enhancement. Accordingly, to the extent petitioner has claimed he is actually innocent, such a claim is subject to dismissal.
