US v. Kevin Dickerson
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:10-cr-00011-SGW-RSB-1,7:12-cv-80528-SGW-RSB Copies to all parties and the district court/agency. [999238812]. Mailed to: Kevin Dickerson. [13-6485]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6485
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN NEVOYLE DICKERSON, a/k/a Hebe,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
Samuel G. Wilson, District
Judge. (7:10-cr-00011-SGW-RSB-1; 7:12-cv-80528-SGW-RSB)
Submitted:
October 29, 2013
Decided:
November 13, 2013
Before KEENAN, DIAZ, and THACKER, Circuit Judges.
Vacated in part and remanded by unpublished per curiam opinion.
Kevin Nevoyle Dickerson, Appellant Pro Se. Donald Ray Wolthuis,
Assistant
United
States
Attorney,
Roanoke,
Virginia,
for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Kevin Nevoyle Dickerson, a federal prisoner, filed a
28 U.S.C. § 2255 motion contending, inter alia, that his counsel
provided ineffective assistance by advising him to reject a plea
agreement
in
favor
of
entering
a
“straight
up”
guilty
plea.
Dickerson sought to appeal the district court’s order denying
relief
on
his
motion
reconsideration.
appealability
We
and
and
a
granted
received
subsequent
Dickerson
further
order
a
briefing
denying
certificate
on
the
of
issue
of
counsel’s alleged ineffective assistance in advising Dickerson
to reject the plea offer. ∗
Because we conclude an evidentiary
hearing
vacate
was
warranted,
we
in
part
and
remand
with
instructions to grant Dickerson a hearing on this ineffective
assistance of counsel claim.
Dickerson
was
charged
with
conspiracy
to
distribute
and possess with intent to distribute more than 1000 grams of
heroin
(Count
One),
and
attempt
to
possess
with
intent
distribute more than 100 grams of heroin (Count Eight).
ultimately
pleaded
guilty
without
a
plea
agreement
to
to
He
both
counts.
The district court imposed a within-Guidelines sentence
of
months’
262
imprisonment
on
∗
each
count,
to
be
served
We denied a certificate of appealability as to the second
claim Dickerson raised in his § 2255 motion.
2
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concurrently.
sentence.
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On
direct
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appeal,
we
affirmed
Dickerson’s
United States v. Dickerson, 436 F. App’x 252 (4th
Cir. 2011) (unpublished).
In his § 2255 motion, Dickerson maintains that counsel
advised him to reject the Government’s proffered plea agreement
by which Dickerson would plead guilty to Count One in exchange
for a dismissal of Count Eight, in favor of entering a “straight
up” guilty plea to both counts.
Dickerson complains that he
“benefitted nothing by entering such a plea” and that he would
have
accepted
the
plea
agreement
absent
counsel’s
ineffectiveness.
While
Government
had
the
not
district
proffered
court
recognized
Dickerson’s
attorney’s
that
the
affidavit
explaining her reasons for recommending a “straight up” guilty
plea, the district court found it “highly likely” that counsel
believed it was important to avoid the appellate and collateral
attack waiver customarily insisted upon by the Government in the
plea agreement.
show
no
The court also emphasized that Dickerson could
resulting
prejudice
because
under
the
conduct-based
sentencing scheme, Dickerson’s plea to Count One subsumed the
conduct alleged in Count Eight, as reflected in the concurrent
262-month sentences imposed and, therefore, “[h]is plea to count
eight did not lengthen his term of incarceration by a single
day.”
3
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To
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succeed
on
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his
ineffective
assistance
claim,
Dickerson must show that: (1) counsel’s performance fell below
an
objective
deficient
standard
performance
Washington,
466
U.S.
of
was
668,
reasonableness
and
(2)
prejudicial.
See
Strickland
The
Supreme
687
(1984).
counsel’s
v.
Court
addressed the standard for showing ineffective assistance during
the plea bargaining stage in Lafler v. Cooper, 132 S. Ct. 1376
(2012),
and
Missouri
v.
Frye,
132
S.
Ct.
1399
(2012).
In
Lafler, the Court held that the Sixth Amendment right to counsel
applies
to
the
plea
bargaining
process
and
prejudice
occurs
when, absent deficient advice, the defendant would have accepted
a plea that would have been accepted by the court, and that “the
conviction or sentence, or both, under the offer’s terms would
have been less severe than under the judgment and sentence that
in fact were imposed.”
132 S. Ct. at 1385.
In Frye, the Supreme Court held that a component of
the
Sixth
Amendment
right
to
counsel
in
the
plea
bargaining
context is that counsel has a duty to communicate any offers
from the Government to his client.
132 S. Ct. at 1408.
Under
Frye, in order to show prejudice from ineffective assistance of
counsel where a plea offer has lapsed or been rejected because
of counsel’s deficient performance, a defendant must demonstrate
a reasonable probability he would have accepted the earlier plea
offer had he been afforded effective assistance of counsel.
4
Id.
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at
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1409.
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Additionally,
a
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defendant
must
show
that
“if
the
prosecution had the discretion to cancel it or if the trial
court had the discretion to refuse to accept it, there is a
reasonable
court
probability
would
have
implemented.”
neither
prevented
the
the
prosecution
offer
from
nor
being
the
trial
accepted
or
Id. at 1410.
In § 2255 proceedings, “[u]nless 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
§ 2255(b).
conclusions
of
law
with
respect
thereto.”
An evidentiary hearing in open court is required
when a movant presents a colorable Sixth Amendment claim showing
disputed
facts
determination
beyond
is
the
necessary
record
in
or
order
to
when
a
credibility
resolve
the
issue.
United States v. Witherspoon, 231 F.3d 923, 926-27 (4th Cir.
2000).
In its response, the Government contends, as it did
below,
that,
by
pleading
guilty
without
a
plea
agreement,
Dickerson preserved all of his appellate rights and all of his
rights
to
collaterally
attack
his
convictions
and
sentence.
Arguing that it was objectively reasonable for defense counsel
to
recommend
this
route,
the
Government
“[d]eference must be given this strategic choice.”
5
asserts
that
With respect
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to prejudice, the Government asserts that the calculus of the
sentencing was unaffected.
an
additional
even
where
conviction
the
Furthermore, while it concedes that
could
sentences
run
have
collateral
concurrently,
consequences,
it
argues
that
Dickerson cannot show there was a reasonable probability that he
would have accepted the plea offer, thus failing to meet the
required showing of prejudice.
We
discretion
conclude
in
Dickerson’s
failing
ineffective
that
to
the
district
court
conduct
an
evidentiary
assistance
of
counsel
abused
its
hearing
claim.
As
on
to
prejudice, we conclude that Dickerson made a colorable showing
that, absent counsel’s advice, he would have accepted a plea
that
would
have
been
accepted
by
the
court,
and
that
“the
conviction or sentence, or both, under the offer’s terms would
have been less severe than under the judgment and sentence that
in fact were imposed.”
Lafler, 132 S. Ct. at 1385.
With respect to the reasonableness of counsel’s advice
to Dickerson to reject the Government’s plea offer, the district
court
was
presented
with
only
the
Government’s
unsworn,
unauthenticated assertion that Dickerson had been offered a plea
agreement that contained a waiver of the right to appeal.
Government did not present any supporting affidavits.
The
A close
look at the Government’s response indicates that avoiding the
appellate waiver would have been the only strategic reason to
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reject
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the
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Government’s
offer
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to
plead
guilty
to
Count
One.
However, there is nothing in the record to support a finding
that the government conditioned its offer on such a waiver, that
counsel deemed it important in Dickerson’s case to avoid waiver
of the right to appeal, or that counsel’s advice to reject the
offer was on that basis.
While counsel may have reasonably
believed that the waiver was reason enough to reject the plea
offer and plead straight up, there is no affidavit from counsel
in the record, and the district court was left to guess at
counsel’s motives and strategy, if any.
determination
agreement
that
was
a
counsel’s
strategic
advice
one
to
is
a
The district court’s
forgo
a
factual
written
plea
determination
requiring a credibility determination, or at least the receipt
of evidence outside of the present record; thus, the district
court
erred
in
not
ordering
an
evidentiary
hearing.
Witherspoon, 231 F.3d at 925-27.
Accordingly, we vacate in part the district court’s
dismissal
of
Dickerson’s
§
2255
motion.
We
remand
with
instructions to grant Dickerson an evidentiary hearing on his
claim that counsel was ineffective in advising him to reject the
Government’s
written
plea
offer
to
one
count
entering a straight up guilty plea to two counts.
in
favor
of
We dispense
with oral argument because the facts and legal contentions are
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adequately
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presented
in
the
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materials
before
this
court
and
argument would not aid the decisional process.
VACATED IN PART AND REMANDED
8
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