Dschak v. USA
MEMORANDUM OF DECISION AND ORDER, Petitioner's Section 2255 Motion to Vacate [Cv Doc. 1], as amended [Cv Doc. 3], is DENIED and DISMISSED. Court declines to issue a Certificate of Appealability. Signed by District Judge Martin Reidinger on 6/16/2015. (Pro se litigant served by US Mail.)(nv)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 1:12-cv-00226-MR
CRIMINAL CASE NO. 1:10-cr-00067-MR-1
RYAN MITCHELL DSCHAK,
UNITED STATES OF AMERICA,
DECISION AND ORDER
THIS MATTER is before the Court on Petitioner’s original and
amended Motion to Vacate, Set Aside or Correct Sentence, filed pursuant to
28 U.S.C. § 2255.
[Cv Docs. 1; 3].1
The Government responded to
Petitioner’s Motion [Cv Doc. 11], and Petitioner replied thereto. [Cv Doc. 12].
Petitioner and one Joseph Hendrix were named in an indictment
returned by the grand jury for this District on October 5, 2010. [Cr Doc. 1].
Petitioner was charged with three crimes: a Hobbs Act robbery and aiding
and abetting the same, in violation of 18 U.S.C. §§ 1951 and 2 (Count One);
Citations to the record herein contain the relevant document number referenced
preceded by either the letters “Cv” denoting the document is listed on the docket in the
civil case file number 1:12-cv-00226-MR, or the letters “Cr” denoting the document is
listed on the docket in the criminal case file number 1:10-cr-00067-MR-1.
possession of a firearm during and in relation to a crime of violence and
aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c) and (2)
(Count Two); and possession of a firearm after having been convicted of a
felony, in violation of 18 U.S.C. § 922(g)(1) (Count Three). [Id.].
months later, Petitioner entered into a written plea agreement with the
Government, pursuant to which Petitioner agreed to plead guilty to Count
Three and the Government agreed to dismiss Counts One and Two. [Cr
Doc. 22]. In the plea agreement, Petitioner agreed to waive his right to
appeal or challenge in a post-conviction proceeding his conviction or
sentence except on the bases of ineffective assistance of counsel or
prosecutorial misconduct. [Id.].
On February 14, 2011, the Honorable Dennis L. Howell, United States
Magistrate Judge, conducted a hearing in accordance with Rule 11 of the
Federal Rules of Criminal Procedure. During this hearing, Petitioner affirmed
that he understood the elements of the offense to which he was pleading
guilty; that he understood the maximum penalty he faced; that he was in fact
guilty of the § 922(g)(1) offense to which he was pleading guilty; that his
guilty plea was voluntary and not the result of coercion, threats or promises
other than those contained in the plea agreement; and that he knowingly and
voluntarily agreed to waive his right to appeal or challenge in any post2
conviction action either his conviction or his sentence, except on the bases
of ineffective assistance of counsel or prosecutorial misconduct. [Cr Doc.
24]. At the conclusion of the hearing, Judge Howell found Petitioner’s plea
to have been knowingly and voluntarily entered. [Id.]. On November 17,
2011, this Court sentenced Petitioner to a term of 100 months’ imprisonment.
[Cr Doc. 54]. The Court entered its judgment on November 23, 2011. [Id.].
Petitioner did not file a direct appeal. Instead, on August 7, 2012, he
filed the present motion to vacate his conviction under 28 U.S.C. § 2255. In
his motion, Petitioner argues that he is actually innocent of the firearm
offense because none of his past convictions (including the conviction
alleged in the Indictment) qualify as a “felony” for purposes of § 922(g)(1),
citing United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).2 [Cv
Doc. 1]. In his amended motion to vacate, Petitioner argues that his counsel
In Simmons, the en banc Fourth Circuit held that, in order for a prior felony conviction
to serve as a predicate offense, the individual defendant must have been convicted of an
offense for which that defendant could be sentenced to a term of imprisonment exceeding
one year. Simmons, 649 F.3d at 243. In reaching this holding, the full court over ruled
its prior precedent in United States v. Harp, 406 F.3d 242 (4th Cir. 2005), which held that
“to determine whether a conviction is for a crime punishable by a prison term exceeding
one year” under North Carolina law, “we consider the maximum aggravated sentence that
could be imposed for that crime upon a defendant with the worst possible criminal history.”
Id. at 246. In reconsidering Harp, the Simmons majority dismissed as improvident its
previous “hypothetical defendant” analysis and deferred to the North Carolina legislature
and its adoption of a strictly regimented sentencing scheme that requires sentencing
judges to effectively tailor the statutory maximum punishment available to each individual
defendant. Simmons, 649 F.3d at 250 (internal citation and quotation omitted).
provided ineffective assistance to him by advising him to plead guilty to the
§ 922(g)(1) offense when he did not have a predicate felony conviction. [Cv
Doc. 3 at 5-6]. He further contends that counsel was ineffective in advising
him to plead guilty because he did not in fact possess the firearm at issue.
[Id. at 6]. Petitioner also contends that counsel coerced him into pleading
The Government responded to Petitioner’s original and amended §
2255 motion on February 21, 2013. [Cv Doc. 11]. In its Response, the
Government argues that Petitioner’s claims are not cognizable because he
waived his right to collaterally attack his conviction or sentence as a part of
his plea agreement. [Id. at 4-5]. Alternatively addressing the merits of
Petitioner’s claims, the Government argues that: (1) Petitioner has a valid
felony conviction from the State of Washington, and thus his Simmons claim
is without merit; and (2) Petitioner has failed to demonstrate that counsel was
ineffective. [Id. at 5-8].
The following facts, as recounted in the PSR, are not in dispute. At
approximately 3:30 a.m. on the morning of December 29, 2009, Joseph
Hendrix entered the Hot Spot convenience store located at 79 Ashland
Avenue in Asheville, North Carolina. Hendrix asked to use the restroom and
the clerk, Willie Louis Jamison, Jr. allowed him to do so. Hendrix came out
of the restroom wearing a blue bandanna on his face and holding a pistol in
his hand. He then threatened to kill Jamison and demanded that Jamison
give him money from the cash register. Jamison complied and gave Hendrix
approximately $150 in U.S. Currency. As Hendrix left the store, he grabbed
a bottle of Wild Irish Rose wine from a shelf. Hendrix then got into the front
passenger seat of a tan or light brown Ford Taurus that was parked on the
west side of the Hot Spot building. [Cr Doc. 48 at 3]. Petitioner then drove
Hendrix away from the convenience store in the Ford Taurus. [Cr Doc. 50
Following the robbery of the Hot Spot store, Asheville police began
investigating the crime and searching for suspects. The police officers’
investigation quickly led them to the Hillcrest Apartments where officers
observed the Petitioner and Hendrix standing near the back of a brown Ford
Taurus matching the description of the getaway vehicle used after the
robbery. [Id. at 4]. As the officers approached the two men, both Petitioner
and Hendrix fled on foot. Hendrix was able to elude the police that day.
Petitioner was caught after a short foot chase but not before Asheville Police
Officer Britt saw Petitioner throw an object over a fence which Britt later
seized and determined was a 9-millimeter semi-automatic pistol. [Id.].
STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255
Proceedings, sentencing courts are directed to examine motions to vacate,
along with “any attached exhibits and the record of prior proceedings” in
order to determine whether a petitioner is entitled to any relief. The Court has
considered the record in this matter and applicable authority and concludes
that this matter can be resolved without an evidentiary hearing. Raines v.
United States, 423 F.2d 526, 529 (4th Cir. 1970).
Actual Innocence Claim
Petitioner’s primary argument is that he is legally innocent of the
charge of being a felon in possession of a firearm because none of his past
convictions constitute a “felony” under federal law. In order to prevail on a
claim of actual innocence as to his count of conviction, however, Petitioner
must also prove his actual innocence as to the first and second charges in
the Indictment which were dismissed pursuant to Petitioner’s plea
agreement. The Supreme Court has explained that “where the Government
has foregone more serious charges in the course of plea bargaining,
petitioner’s showing of actual innocence must also extend to those charges.”
Bousley, 523 U.S. 614, 624 (1998); see also United States v. Apker, 241
F.3d 1060, 1062 (8th Cir. 2001) (noting that under Bousley, in addition to
showing actual innocence of the challenged conviction, a petitioner “must
show actual innocence of any other dismissed charges if those dismissed
charges were more serious”). Here, the two Counts that the Government
dismissed in exchange for Petitioner’s guilty plea alleged that Petitioner
aided and abetted Hendrix in the commission of a Hobbs Act robbery, and
aided and abetted Hendrix’s possession of a firearm during and in relation to
that robbery. Thus, in order to obtain relief based on actual innocence, the
Petitioner has the burden under Bousley to demonstrate the he is actually
innocent of these charges as well as the § 922(g)(1) count. Petitioner has
presented nothing that would indicate that he is actually innocent of these
charges, except to allege he was asleep in the backseat of the car Hendrix
drove to the Hot Spot convenience store before robbing it. [Cv Doc. 3 at 6].
The evidence presented by the Government at sentencing, however,
belie Petitioner’s contentions. At sentencing, the Government played the
surveillance tape obtained from the Hot Spot convenience store which
recorded the events surrounding the robbery. After reviewing that tape, the
Court found that Petitioner was complicit in the robbery. Specifically, the
Court found that Petitioner acted in concert with Hendrix and it was
foreseeable to Petitioner that Hendrix would brandish the firearm and
restrain the victim during the robbery. The Court further found that Petitioner
was in constructive and joint possession of the firearm during the robbery
and that he had sole possession and acted to dispose of the firearm after the
robbery. [Cr. Doc. 55 at 3-4].
Because Petitioner cannot prove his actual innocence as to Counts
One and Two of the Indictment, his actual innocence claim as to Count Three
must likewise fail.
Even if Petitioner were able to establish his actual innocence as to the
dismissed counts, however, Petitioner’s Simmons claim would fail on its
merits. In addition to his numerous North Carolina convictions, Petitioner
was convicted of second-degree theft in the State of Washington in 2002.3
[Doc. 48 at 8; Doc. 11-1]. Under Washington law, second-degree theft is
classified as a Class C felony. See Wash. Rev. Code Ann. § 9A.56.040;
United States v. Murillo, 422 F.3d 1152, 1155 (9th Cir. 2005). As reflected in
Petitioner’s judgment and as established by Washington Revised Code
Here, the Indictment did not cite Petitioner’s prior Washington conviction as the
predicate offense, citing instead a North Carolina conviction for attempted identity theft,
an offense for which Petitioner actually received a 7-9 month sentence and for which he
contends he could not have received more than one year in prison. [Cr Doc. 48 at 14; Cv
Doc. 1 at 2]. If, however, Petitioner has any qualifying predicate felony convictions to
support to the § 922(g)(1) offense, the Government could seek Petitioner’s re-indictment
after the vacatur of his conviction. See 18 U.S.C. § 3288. Therefore, a dismissal of the
§ 922(g)(1) count based on the infirmity of the predicate conviction cited in the Indictment
would be futile if Petitioner had incurred any other valid felony conviction prior to his
commission of the instant offense.
Annotated § 9A.20.021(c), the maximum term of imprisonment for a Class C
felony under Washington law is five years. See id. § 9A.20.021(c). Because
Petitioner could have received a sentence of up to five years, this prior
conviction qualifies as an adequate predicate felony for purposes of §
922(g)(1). Accordingly, Petitioner’s Simmons claim fails on its merits.
Ineffective Assistance of Counsel Claim
The Sixth Amendment guarantees that in all criminal prosecutions, the
accused shall have the right to the effective assistance of counsel for his
defense. U.S. Const. amend. VI. In order to prevail on a claim of ineffective
assistance of counsel, a petitioner must show that: (1) “counsel’s
representation fell below an objective standard of reasonableness,” and (2)
deficient performance prejudiced the defense.”
Washington, 466 U.S. 668, 687-88 (1984).
In measuring counsel’s
performance, there is “a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id. at 689. In
the context of a guilty plea, in order to demonstrate prejudice a petitioner
must present a reasonable probability that, but for counsel’s allegedly
deficient conduct, he would have elected to plead not guilty and insisted on
proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
In the present case, Petitioner claims that his counsel provided
ineffective assistance to him by advising him to plead guilty to the § 922(g)(1)
offense when he did not have a predicate felony conviction. For the reasons
set forth above, however, the Court concludes that Petitioner in fact had a
valid predicate felony conviction. Moreover, the Court notes that defense
counsel negotiated a plea on Petitioner’s behalf that called for the dismissal
of readily provable and more serious charges. The conduct of Petitioner’s
counsel in advising him to plead to the §922(g)(1) charge, therefore, was not
Petitioner further contends that counsel was ineffective in advising him
to plead guilty because he did not in fact possess the firearm at issue.
Petitioner also contends that, despite knowing that Petitioner did not actually
possess the firearm, counsel nevertheless coerced him into pleading guilty.
These allegations, however, are foreclosed by Petitioner’s sworn statements
during his Rule 11 colloquy. During that hearing, Petitioner acknowledged,
while under oath, that he understood the elements of the offense to which he
was pleading guilty; that he was in fact guilty of the § 922(g)(1) offense to
which he was pleading guilty; and that his guilty plea was voluntary and not
the result of coercion, threats or promises other than those contained in the
plea agreement. [Cr Doc. 24]. “[A] defendant's solemn declarations in open
court affirming [a plea] agreement ... ‘carry a strong presumption of verity.’ “
United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (citing United
States v. White, 366 F.3d 291, 295 (4th Cir. 2004) (internal citation omitted).
“[C]ourts must be able to rely on the defendant's statements made under
oath during a properly conducted Rule 11 colloquy.” Lemaster, 403 F.3d at
221 (citing United States v. Bowman, 348 F.3d 408, 417 (4th Cir. 2003)). This
strong presumption that a defendant has been truthful in his sworn answers
creates “a formidable barrier in any subsequent collateral proceedings.”
Lemaster, 403 F.3d at 221 (alterations and internal quotations omitted).
Based on the foregoing, “in the absence of extraordinary circumstances, the
truth of sworn statements made during a Rule 11 colloquy is conclusively
established, and a district court should, without holding an evidentiary
hearing, dismiss any § 2255 motion that necessarily relies on allegations that
contradict the sworn statements. Otherwise, a primary virtue of Rule 11
colloquies would be eliminated -- “permit[ting] quick disposition of baseless
collateral attacks.” Id. at 221–22 (quoting Blackledege v. Allison, 431 U.S.
63, 80 n.19 (1997)).
Petitioner’s solemn admission of guilt foreclose his arguments
regarding the ineffective assistance of his counsel and the voluntary and
knowing nature of his plea. Accordingly, Petitioner’s ineffective assistance
claim will be dismissed.
Based on the foregoing, the Court finds that Petitioner has failed to
satisfy his burden to demonstrate any entitlement to relief in this collateral
proceeding, and his § 2255 motion should therefore be dismissed.4 Further,
pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, the
Court declines to issue a certificate of appealability as Petitioner has not
made a substantial showing of a denial of a constitutional right. 28 U.S.C. §
2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to
satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that when relief
is denied on procedural grounds, a petitioner must establish both that the
correctness of the dispositive procedural ruling is debatable, and that the
petition states a debatably valid claim of the denial of a constitutional right).
Because the Court dismisses Petitioner’s claims on the merits, the Court need not
consider the Government’s contention that Petitioner’s claims are barred by the appellate
waiver in his plea agreement.
IT IS, THEREFORE, ORDERED that Petitioner’s Section 2255 Motion
to Vacate [Cv Doc. 1], as amended [Cv Doc. 3], is DENIED and DISMISSED.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2255 Cases, the Court declines to issue a certificate of
The Clerk is respectfully directed to close this civil case.
IT IS SO ORDERED.
Signed: June 16, 2015
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