Keith v. USA

Filing 2

MEMORANDUM OF DECISION AND ORDER denying and dismissing 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Martin Reidinger on 5/23/14. (Pro se litigant served by US Mail.) (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
Civil Case No. 1:14-cv-00073-MR
[Criminal Case No. 1:11-cr-00107-MR-DLH-2]

JAMES DOUGLAS KEITH,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)
)

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER comes before the Court on an initial review of
Petitioner’s Motion to Vacate, Set Aside or Correct Sentence pursuant to
28 U.S.C. § 2255 [Doc. 1].

No response is necessary from the

Government.
I.

BACKGROUND
On December 6, 2011, Petitioner was indicted by the Grand Jury in

this District on one count of possession of methamphetamine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) (Count 1); one count of
possession of a firearm by a felon, in violation of 18 U.S.C § 922(g)(1)
(Count 2); and one count of possession of a firearm during and in
furtherance of the drug trafficking crime charged in Count 1, in violation of

18 U.S.C. § 924(c)(1)(A) (Count 3). [Criminal Case No. 1:11-cr-00107, Doc.
11: Indictment].
Petitioner was appointed counsel and soon entered into a written plea
agreement with the Government. Pursuant to this agreement, Petitioner
agreed to plead guilty to Count 1 in exchange for the Government’s
agreement to dismiss the remaining two counts of the Indictment. [Id., Doc.
29: Plea Agreement]. On February 22, 2012, Petitioner appeared with
counsel before U.S. Magistrate Judge Dennis L. Howell for his Plea and
Rule 11 hearing. After being placed under oath, Petitioner averred that he
could hear and understand the questions posed by the Court, that he was
not under the influence of any drugs or medications, and that he had taken
no medications within the last 48 hours. Petitioner filed notice with the
Court prior to the hearing that he had been treated for mental illness while
incarcerated within the Mississippi Department of Corrections and had
been prescribed medication although he did not provide the date of
treatment. [Id., Doc. 32: Addendum to Acceptance and Entry of Guilty
Plea].
During the plea colloquy, the Court carefully reviewed the elements of
Count 1 and the potential penalties that Petitioner faced upon conviction
and Petitioner confirmed that he understood the charge and penalties if
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convicted on Count 1. Petitioner averred that he understood that he could
elect to plead not guilty and require the Government to prove his guilt
beyond a reasonable doubt at trial and that he was agreeing to waive his
right to contest the charges and had decided to plead guilty because he
was in fact guilty as charged. The Government summarized the terms of
the plea agreement and Petitioner averred that he understood and agreed
with those terms. Petitioner acknowledged that he was satisfied with the
services of his attorney and that no one had promised him a particular
sentence or anything else that was not set forth in the plea agreement.
Finally, Petitioner acknowledged that no one had coerced or forced him to
plead guilty. The Court accepted Petitioner’s plea of guilty after finding that
such plea was knowingly and voluntarily entered. [Id., Doc. 31: Acceptance
and Entry of Guilty Plea].
The U.S. Probation Office prepared a presentence report (PSR) in
advance of Petitioner’s sentencing hearing. The PSR noted that Petitioner
qualified as a career offender pursuant to § 4B1.1 of the U.S. Sentencing
Guidelines Manual (USSG) based on two prior convictions for aggravated
robbery, which he sustained in Tennessee in 1994, and one conviction for
conspiracy to possess with intent to distribute heroin, which he sustained in
Oklahoma in 2001. [Id., Doc. 47: PSR ¶¶ 21, 35, 36]. Based on a total
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offense level of 33 and a criminal history category of VI, and a statutory
range of not less than 5 years and not more than 40 years’ imprisonment,
the probation officer calculated Petitioner’s Guidelines range to be 235 to
293 months in prison. [Id. ¶ 57].

After Petitioner submitted pro se

objections to the PSR, the probation officer filed a supplement to the PSR
countering those objections.1 [Id., Doc. 50].
On March 20, 2013, Petitioner appeared with counsel for his
sentencing hearing.

The Court first confirmed that the answers that

Petitioner provided during his Plea and Rule 11 hearing were true and that
he would provide the same answers during his sentencing hearing if those
same questions were then posed by the Court.

Petitioner’s counsel

affirmed that he was satisfied that Petitioner understood the questions
during the Rule 11 hearing and during the sentence hearing. Petitioner
acknowledged that he intended to be bound by his guilty plea and that he
was in fact guilty of the conduct charged in Count 1 of the Indictment. The
Court accepted his guilty plea after finding that it was knowingly and
voluntarily entered and that the Petitioner understood the charges, potential
penalties and consequences of his guilty plea. The parties stipulated that

1

The pro se objections addressed the factual circumstances surrounding Petitioner’s
criminal history and have no impact on the issues raised by Petitioner in this collateral
proceeding.
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the factual basis as set forth in the presentence report supported
Petitioner’s guilty plea and the Court entered a judgment finding Petitioner
guilty.
The Court found that Petitioner’s Guidelines range was 235 to 293
months’ imprisonment and then granted the Government’s motion for a
downward departure based on Petitioner’s substantial assistance under §
5K1.1 of the Guidelines which resulted in a new range of 188 to 235
months’ imprisonment.
Petitioner’s counsel addressed the Court and noted that Petitioner
had a long criminal history and a long history of substance abuse which
had contributed to his criminal pursuits. Petitioner’s counsel also noted
Petitioner’s desire that the Court be informed that Petitioner had Hepatitis
A, B, and C. Petitioner then addressed the Court and stated that he was
admitting for the first time that he was a drug addict and the drugs had
controlled his decision making since he was 7 or 8 years old. Petitioner
noted that he had participated in a class while awaiting sentencing that
helped him to admit that he has a problem with substance abuse and that
he wanted to be a productive citizen upon his release from prison.
Petitioner was sentenced to 188 months’ imprisonment.

In

pronouncing the sentence, the Court noted for the Bureau of Prisons that
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Petitioner had a long history of substance abuse and recommended that he
be allowed to participate in treatment while incarcerated. The Court further
noted that Petitioner had a history of mental health issues and
recommended that he be allowed to participate in treatment while in BOP
custody. [Id., Doc. 55: Judgment in a Criminal Case]. Petitioner further
was advised of his right to appeal his conviction and sentence.
Petitioner did not file a direct appeal. Instead, in May 2013, after his
time for filing a direct appeal expired, Petitioner filed a pro se motion
questioning whether he may have benefitted from a mental health
evaluation prior to sentencing. [Criminal Case No. 1:11-cr-00107, Doc. 58].
Noting that Petitioner was still represented by counsel, the Court denied
Petitioner’s pro se effort to challenge or modify his judgment. [Id., Doc. 60].
In March 2014, Petitioner filed the present § 2255 motion to vacate,
the allegations of which will be addressed herein.
II.

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
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concludes that this matter can be resolved without an evidentiary hearing.
See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
III.

DISCUSSION
In this § 2255 proceeding, Petitioner raises only one ground for relief,

namely, that he should have received a mental health evaluation prior
being sentenced. [Doc. 1 at 4]. Petitioner contends that his counsel was
ineffective in failing to move for a mental evaluation and he explains that he
did not appeal his judgment because he “did not know if he [asked] the
lawyer to seek a mental evaluation and he didn’t do it that [Petitioner] could
appeal.” [Id. at 3].
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)
“the

deficient performance prejudiced the defense.”

Washington, 466 U.S. 668, 687-88 (1984).

Strickland

v.

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. A
petitioner seeking post-conviction relief bears a “heavy burden” to
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overcome this presumption. Carpenter v. United States, 720 F.2d 546, 548
(8th Cir. 1983). Conclusory allegations do not overcome the presumption
of competency. Id.
To demonstrate prejudice, Petitioner must demonstrate “‘not merely
that the errors at . . . trial created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions.’” Murray v. Carrier, 477 U.S. 478,
493 (1986) (emphasis omitted) (quoting United States v. Frady, 456 U.S.
152, 170 (1982)). Under these circumstances, Petitioner “bears the burden
of proving Strickland prejudice.” Fields v. Attorney Gen. of State of Md.,
956 F.2d 1290, 1297 (4th Cir. 1992) (citing Hutchins v. Garrison, 724 F.2d
1425, 1430-31 (4th Cir. 1983)).

If Petitioner falls short of meeting his

burden here, then “a reviewing court need not consider the performance
prong.” Fields, 956 F.2d at 1297 (citing Strickland, 466 U.S. at 697). In
considering the performance prong, the Court must not grant relief solely
because Petitioner can show that, but for counsel’s performance, the
outcome of the proceeding would have been different.

See Sexton v.

French, 163 F.3d 874, 882 (4th Cir. 1998). Rather, the Court “can only
grant relief under . . . Strickland if the ‘result of the proceeding was
fundamentally unfair or unreliable.’ ” Id. (quoting Lockhart v. Fretwell, 506
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U.S. 364, 369 (1993). Finally, 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. See Hill v. Lockhart,
474 U.S. 52, 58-59 (1985).
The Court first notes that Petitioner did not raise any claims regarding
a possible mental evaluation during his Rule 11 hearing or at any time prior
to entry of judgment. Petitioner did, however, admit under oath during his
Rule 11 hearing that he understood the nature of the charge against him,
the potential penalties and the overall nature of Rule 11 proceedings, and
he acknowledged that he was satisfied with the services of his attorney and
that he was in fact guilty as charged in Count 1.

Moreover, Petitioner

averred that he was entering his guilty plea willfully, freely and knowingly.
Petitioner confirmed the knowing and voluntary nature of his guilty plea
during his sentencing hearing and this Court concluded that he had in fact
understood the nature of the Rule 11 proceeding and that his plea was
knowingly and voluntarily entered.

During sentencing, Petitioner never

raised any issue as to whether he misunderstood the Rule 11 proceedings
or that he might have benefitted if he was ordered to undergo a mental
evaluation prior to sentencing.
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“[A] defendant’s solemn declarations in open court affirming [a plea]
agreement “carry a strong presumption of verity.” United States v. White,
366 F.3d 291, 295 (4th Cir. 2004) (quoting Blackledge v. Allison, 431 U.S.
63, 74 (1977)). Courts “must be able to able to rely on the defendant’s
statements made under oath during a properly conducted Rule 11 plea
colloquy.” United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005)
(citing United States v. Bowman, 348 F.3d 408, 417 (4th Cir. 2003)).
“Indeed, because they do carry such a presumption, they present ‘a
formidable barrier in any subsequent collateral proceedings.’” White, 366
F.3d at 295-96 (quoting Blackledge, supra).
In his § 2255 motion, Petitioner does not contend that his mental
state rendered his guilty plea unknowing or involuntary. Rather, he states
in a conclusory fashion that counsel’s failure to seek a mental evaluation
was per se ineffective assistance of counsel and that he was prejudiced by
this failure. This argument is without merit.
The evidence contained in his PSR demonstrates that Petitioner has
a long history of drug activity and the Court credited his statement during
sentencing that he has had a substance abuse problem from a very young
age. The Court further considered his long history of substance abuse and
mental health issues when fashioning his sentence and specifically
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recommending that he be allowed to participate in treatment while in BOP
custody.
After considering the record in this matter, the Court finds that
Petitioner has failed to demonstrate that counsel’s failure to pursue a
mental health evaluation affected his ability to enter a knowing, voluntary
and intelligent guilty plea, or that his attorney provided ineffective
assistance of counsel in failing to seek the evaluation or that he was
prejudiced by his attorney’s action or omission. 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 his §
2255 motion will therefore be dismissed.
Finally, 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. 474, 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
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debatable, and that the petition states a debatably valid claim of the denial
of a constitutional right).

ORDER
IT IS, THEREFORE, ORDERED that Petitioner’s Section 2255
Motion to Vacate [Doc. 1] 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
appealability.
The Clerk is respectfully directed to close this civil case.
IT IS SO ORDERED.
Signed: May 23, 2014

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