McSwain v. USA

Filing 14

AMENDED ORDER re 12 Order granting 5 Motion for Summary Judgment. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence is DISMISSED with prejudice. Court declines to issue a certificate of appealability. Signed by Chief Judge Robert J. Conrad, Jr on 9/7/2010. (Pro se litigant served by US Mail.)(tmg)

M c S w a i n v. USA

D o c . 14

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA C H A R L O T T E DIVISION 3 :0 8 cv 2 0 6 (3:05cr79)

ALVIN EUGENE McSWAIN,

) ) P e t i t io n e r , ) v. ) ) UNITED STATED OF AMERICA, ) ) R e sp o n d e n t . )

AMENDED ORDER 1

T H IS MATTER is before the Court upon petitioner's Motion to Vacate, Set A s id e , or Correct Sentence pursuant to 28 U.S.C. §2255 filed on May 2, 2008 (#1 1); th e government's Motion for Summary Judgment filed June 18, 2008 (#5); p etitio n er's Response to the Government's Motion for Summary Judgment filed on Ju ly 21, 2008 (Doc. No. 9); and the government's Reply. (Doc. No. 10). For the

reaso n s stated below, petitioner's Motion to Vacate will be denied and dismissed. F IN D IN G S AND CONCLUSIONS I. P r o c ed u r a l History O n March 29, 2005, petitioner was named in a one-count Bill of Indictment c h a rg in g him with being a felon in possession of a firearm in violation of 18, United

This amended order adds a decision on the issuance of a certificate of appealability to the Order issued September 3, 2010. (Doc. No. 12). 1

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Dockets.Justia.com

S ta te s Code, Section 922(g)(1). United States v. McSwain, 3:05cr79 (W.D.N.C. 2 0 0 5 ) (Docket Entry #1). On September 8, 2005, petitioner entered plea of guilty to th e Bill of Indictment without a plea agreement. Id., at Docket Entry #13. On F e b r u a r y 27, 2006, this court conducted a sentencing hearing and imposed a sentence o f 96 months imprisonment followed by three years of supervised release. Id., at D o ck et Entry #20. After entry of Judgment, petitioner, through counsel, appealed his conviction to the Court of Appeals for the Fourth Circuit and filed an Anders brief in which p etitio n er questioned: (1) the validity of Petitioner's conviction on the ground that the fire ar m Petitioner possessed was inoperable; and (2) the reasonableness of petitioner's s en te n c e. On December 1, 2006, the Court of Appeals for the Fourth Circuit issued its decision affirming petitioner's conviction and sentence. United States v. McSwain, N o . 06-4259 (4 th Cir., December 1, 2006). Petitioner filed a petition for writ of certio ra ri in the Supreme Court of the United States which was denied on June 29, 2007. Petitioner filed the instant Motion to Vacate alleging that his attorney was in e f fe ctiv e for: (1) allowing him to plead guilty to being a felon in possession when h e was not actually a felon and for (2) failing to object to his 1997 DWI and 2003 m is d e m e an o r assault convictions which improperly added points to his criminal

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h isto ry calculus. Each contention will be addressed seriatim. II. D is c u s s io n P u rsu an t to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sen ten cin g courts are directed to promptly examine motions to vacate, along with "any attach ed exhibits and the record of prior proceedings . . . " in order to determine w h eth er a petitioner is entitled to any relief. Fed.R.G.Sec.2255 P. 4(b). If the motion is not dismissed after that initial review, the court must direct the government to resp o n d . Id. The court must then review the government's answer and any materials s u b m itte d by the parties and determine whether an evidentiary hearing is warranted p u rsu an t to Rule 8(a). In accordance with Rules 4 and 8, the court has conducted such review and it is patently clear that petitioner is entitled to no relief on his claims and an evidentiary h e a rin g is not warranted. Raines v. United States, 423 F.2d 526, 529 (4 th Cir. 1970). A. Ineffective Assistance of Counsel

T o establish a claim of ineffective assistance of counsel, a petitioner must show th at counsel's performance fell below an objective standard of reasonableness, and th at he was prejudiced by such constitutionally deficient representation. Strickland v . Washington, 466 U.S. 687-91 (1984). In measuring counsel's performance, there is a strong presumption that counsel's conduct was within the wide range of

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r ea so n a b le professional assistance. Id., at 689; see also Fields v. Attorney General o f State of Md., 956 F.2d 1290, 1297-99 (4 th Cir. 1992). In the plea context, a p etitio n er must show that his counsel's performance was deficient and "there is a reaso n ab le probability that, but for counsel's errors, he would not have pleaded guilty an d would have insisted on going to trial." Fields, 956 F.2d at 1297 (quoting Hill v. L o c k h a rt, 474 U.S. 52, 59 (1985) (internal citations and quotations omitted). 1. P etitio n er's Contention That He Was Not a Felon.

P e titio n e r first claims that his counsel was ineffective for allowing him to plead g u ilty to being a felon in possession when he was not actually a felon. Petitioner ad m its that he was convicted of felony robbery in 1980, felony assault in 1983, and p o s se ss io n of crack in 1995, but relies on United States v. Essick, 935 F.2d 28 (4 th Cir. 1 9 9 1 ) for the proposition that his right to possess firearms was restored when his co n v ictio n s were discharged in 1996. Petitioner is correct that Essick imposed upon th e government the burden of proving that the federal possession occurred within five years of the cessation of state supervision for a state felony, because at that time North C a ro lin a automatically restored the rights of felons to possess guns five years after state supervision ends. Id. at 30-31 (citing N.C. Gen. Stat. § 14-415.1). In 1995, h o w e v e r, the North Carolina legislature amended the statute to eliminate the five year au to m atic restoration rule. See N.C.Gen.Stat. § 14-415.1. Since the time of the

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am en d m en t, the Court of Appeals for the Fourth Circuit has held that the state's a m e n d m e n t of the statute was regulatory, not punitive, and therefore the state law co u ld be applied retroactively to previously discharged convictions for federal felon in possession purposes. See United States v. Farrow, 364 F.3d 551, 554-55 (4 th Cir. 2 0 0 4 ); United States v. O'Neil, 180 F.3d 115, 123-25 (4 th Cir. 1999). In light of the such precedent interpreting the amended statute, petitioner's co u n sel would not have been successful in arguing that petitioner was not a felon b ecau se his convictions had been discharged. Inasmuch as the claim would not have b een successful, counsel cannot be deemed deficient for having failed to raise the claim , which also eliminates the possibility that failure to raise the unsuccessful claim p reju d iced petitioner. Petitioner's claim that he thought his rights had been restored does not, h o w ev er, revive his claim. Unlawful possession of a gun by a felon is not a specific in ten t crime. The "knowing" requirement of a Section 922(g) offense applies only to th e possession element, not to the felony or commerce element. United States v. G ilb ert, 430 F.3d 215, 218 (4 th Cir. 2005). Petitioner's ignorance of the law claim, th erefo re, also fails. I n his response to the government's Motion for Summary Judgment, petitioner claim s that North Carolina law allows convicted felons to legally possess guns in their

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h o m e s or places of business and because he was arrested at home, where he was leg ally permitted to possess a gun, his attorney was ineffective for allowing him to p lead guilty to being a felon in possession of a firearm. Petitioner is incorrect in relyin g on North Carolina Gen. Stat. § 14-415(a) for such proposition because the p ro v isio n allowing a felon in possession to possess a gun in their home or place of b u sin ess was repealed effective December 1, 2004 and petitioner possessed a gun in h is home on January 16, 2005. See N.C. Sess. Law 2004-186. P etitio n er also contests the voluntariness of his guilty plea in his response to the g o v ern m en t's Motion for Summary Judgment. Such voluntariness claim is based on h is misinterpretation of the law set forth above. Therefore, Petitioner's claim that his g u ilty plea was not voluntary is also without merit. 2. S e n t en c in g Issues

N ex t, Petitioner argues that his counsel was ineffective for failing to object to h is 1997 Driving While Impaired and 2003 misdemeanor assault convictions detailed in his presentence report, which added two criminal history points to his guideline c alc u lu s . Pursuant to section 4A1.1(c) of the Guidelines, every sentence (other than a longer sentence already counted under subsections (a) and (b)), up to a total of four sen ten ces for four points, merits one criminal history point. Section 4A1.2(a)(1) ex p lain s that this means any prior sentence, no matter how minor, except for those

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s p e cif ic ally excluded under Section 4A1.2(c). Section 4A1.2(e)(2) explains that sen ten ces for less than one year and one month imposed within ten years of the d ef en d an t's commencement of the instant offense are counted. Both of Petitioner's o ffen ses were within 10 years of his firearms offense, neither was specifically e x c lu d e d under Section 4A1.2(c) and petitioner did not have more than four such "m in o r " offenses. Counsel cannot be found ineffective for failing to raise an Petitioner has not established either

a r g u m e n t that is contrary to established law.

p r o n g of the Strickland test, therefore his claims of ineffective assistance of counsel m u st fail. III. Conclusion T h e court has considered the pleadings and documents submitted by the parties an d the entire record of this matter and finds that it is clear that Petitioner is not en titled to relief on any of his claims.

ORDER IT IS, THEREFORE ORDERED that: (1 ) (2 ) th e Government's Motion for Summary Judgment (# 5) is GRANTED; th e Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (#1) is DISMISSED with prejudice; and

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(3 )

that pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, th is Court declines to issue a certificate of appealability as Petitioner has n o t has not made a substantial showing of a denial of a constitutional rig h t. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 3 3 6 -3 8 (2003) (in order to satisfy § 2253(c), a petitioner must d em o n strate that reasonable jurists would find the district court's a ss es sm e n t of the constitutional claims debatable or wrong) (citing Slack v . McDaniel, 529 U.S. 473, 484 (2000)).

Signed: September 7, 2010

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