Randall v. USA

Filing 12

ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Max O. Cogburn, Jr on 7/15/2013. (Pro se litigant served by US Mail.)(blf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:13-cv-00154-MOC
JAMAR SERON RANDALL,

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Petitioner,
Vs.

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OF DECISION
and ORDER

THIS MATTER is before the court on petitioner’s Motion Under § 2255 to Vacate, Set
Aside, or Correct Sentence (#1). Upon receipt of the petition, the court conducted an Initial
Screening of the petition under the Rules Governing § 2255 Proceedings, Rule 4(b) 28

U.S.C. §2255, and found that petitioner had asserted the following claims
(I)

Petitioner’s Sixth Amendment Right to Counsel was Denied
due to Ineffective Assistance of Trial Counsel, based on the
following subcontentions:
(a)

ineffective assistance of trial counsel in advising defendant

as to the government’s first plea offer;
(b)

ineffective assistance of trial counsel in advising defendant

as to the government’s second plea offer; and/or
(c)

ineffective assistance of trial counsel, amounting to

abandonment, in pursuing the Motion to Suppress and by failing to
appear at the hearing on the Motion to Suppress.

After conducting the initial screening, the United States was directed to file an Answer or

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other responsive pleading. On June 18, 2013, the government filed its Motion to Dismiss
(#9) and Response in Opposition (#8). The court then entered a Roseboro and Rule 5(D)
Order (#10), advising petitioner of his opportunity to file a reply and explaining how such
a reply and any supporting materials should be filed. Petitioner filed his Reply (#11) on
July 10, 2013, which the court has deemed timely submitted.
FINDINGS and CONCLUSIONS
I.

Background
A.

Indictment and Waiver of the Petite Policy

On August 17, 2010, a federal grand jury sitting in the Western District of North
Carolina charged petitioner with possession of a firearm by a convicted felon, in violation
of 18 U.S.C. § 922(g). Indictment (United States v. Randall, 3:10cr174 (#1) (hereinafter
“Randall”)). After the federal indictment issued, petitioner pled guilty in state court to
the state offense of possession of a firearm by a convicted felon, for which he received a
suspended sentence and probation. When respondent learned of such state conviction, it
obtained a waiver of the Department of Justice’s Petite Policy,1which internally allowed
the respondent to proceed with the federal prosecution.
B.

Pretrial Motions and Plea

In December 2010, petitioner through retained counsel filed a Motion to Suppress,
contending that the officer who discovered the firearm lacked probable cause to search
petitioner’s vehicle. Randall, Motion to Suppress (#9). A hearing on that motion was
calendared for January 3, 2011, but was later cancelled after petitioner filed a written plea
1

Petite v. United States, 361 U.S. 529 (1960); USAM 9-2.031.
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agreement. Id. Plea Agreement (#15). In that agreement, petitioner acknowledged that
the offense carried with it a maximum possible penalty of 10 years. Id. at ¶ 3. Petitioner
also acknowledged the court “has not yet determined the sentence and any estimate of the
likely sentence is a prediction rather than a promise,” and that the court “has final
discretion to impose any sentence up to the statutory maximum for each count.” Id. at ¶ 5.
At a Rule 11 hearing, the magistrate judge, after conducting a particularized
inquiry, accepted petitioner’s plea. Id. Rule 11 Transcript (#30). Petitioner affirmed that
he had discussed with his attorney the Sentencing Guidelines and how they might apply,
and he acknowledged that he understood that there may be instances when he may
receive a sentence that was higher or lower than those called for by the Sentencing
Guidelines. Id. at 6-7. Petitioner also affirmed that he understood that if the sentence was
more severe than he expected that he would still be bound by his plea and would have no
right to withdraw it. Id. at 7. When initially asked whether he was satisfied with the
services of counsel, petitioner answered “no” and that his attorney “told me 41 months.”
Id. at 19-20. The proceeding was then recessed, and when it resumed later that same
day, petitioner was again asked whether he was satisfied with the services of counsel, and
he answered “Yes, sir” and further added “he did a good job.” Id. at 27.

Counsel for

petitioner explained to the magistrate judge the deliberative process of petitioner. The
magistrate judge accepted the plea, and petitioner signed an “Entry and Acceptance of
Guilty Plea.” Id. Entry and Acceptance of Guilty Plea (#16).
C.

Post-Plea Filings by Petitioner

A number of weeks after the plea was accepted, petitioner filed a series of motion
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seeking to terminate counsel and withdraw the plea. The magistrate judge granted the
petitioner’s motion to terminate his retained counsel and appointed petitioner substitute
counsel. Appointed counsel then filed a counseled Motion to Withdraw Plea, id. Motion
to Withdraw Plea (#24), relying in part on petitioner’s earlier filings. The magistrate
judge entered an Order, id. (#31), denying the relief sought, to which petitioner filed
timely Objections. Id. Objections (#36).
At the first sentencing hearing, petitioner asserted that the answers and he had
given to the magistrate judge were not true and correct and that he had been told that
government had agreed with his former counsel that he would receive a 41-month
sentence. Rather than go forward with the sentencing hearing, this court scheduled an
evidentiary hearing on petitioner’s Motion to Withdraw Guilty Plea for November 21,
2011. At that hearing, petitioner, his fiancée, and his former counsel testified.
After petitioner had presented his evidence and argument of respective counsel,
this court analyzed the six factors provided in United States v. Moore, 931 F.2d 245 (4th
Cir. 1991), and denied petitioner’s motion to withdraw his guilty plea. Id. Transcript of
Motion to Withdraw Hearing (#68) at 108-111. This court found that found that petitioner
was advised in the written plea agreement and by the magistrate judge that any estimate
from his attorney was merely an estimate, that petitioner had the close assistance of
counsel during the plea process, and that Petitioner had not credibly asserted his legal
innocence. Id.
D.

Second Sentencing Hearing

The day after the court conducted the evidentiary hearing, a second sentencing
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hearing was scheduled.

The court accepted the magistrate judge’s finding of

voluntariness and accepted the plea. The court then took up petitioner’s objections to the
Presentence Report, to wit, that he: (1) consented to a search of his person; and (2)
should be assigned criminal history points for two of his prior convictions, alleging that
he did not knowingly waive representation in those cases. Id. Second Sentencing Hearing
Transcript (#69) at 7. This court noted the objection as to consent and overruled the
objection as to criminal history points. Id. at 9. Finding that the advisory guidelines
range was 92 to 115 months, and after considering the 18 U.S.C. § 3553(a) factors, this
court imposed a low-end sentence of 92 months, id. at 13, 30, and Judgment was entered
November 29, 2011.
E.

Appeal

On direct appeal, petitioner challenged this court’s denial of his Motion to
Withdraw Plea as well as its calculation of the applicable criminal history points. The
Court of Appeals for the Fourth Circuit affirmed the denial of the Motion to Withdraw
plea and dismissed petitioner’s challenge to the calculation of his criminal history points
as falling within his appeal waiver. United States v. Randall, 478 F.App’x. 5 (4th Cir.
2012). The appellate court further noted that it could “find no conclusive support for
Randall’s claim” of ineffective assistance of counsel. Id. at n.*.
II.

Petitioner’s Section 2255 Contentions
On March 11, 2013, petitioner filed the instant petition alleging ineffective

assistance of counsel. In particular, petitioner contends that his retained counsel was
ineffective: (1) in advising him as to the government’s first plea offer; (2) in advising
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defendant as to the government’s second plea offer; and (3) abandoning petitioner in
pursuing the Motion to Suppress and by failing to appear at the hearing on the Motion to
Suppress. The arguments supporting each contention will be reviewed seriatim and the
court will then consider petitioner’s overall contention that his retained counsel was
ineffective based on a totality of the record.
A.

Petitioner’s Contentions of Ineffective Assistance of Retained Counsel
1.

First Plea Offer

Petitioner contends that counsel advised him to reject the first plea offer because
they would prevail on a motion to suppress as the officer lacked probable cause to search
petitioner’s car, the federal indictment would be dismissed on double jeopardy grounds,
and the attorney failed to include the enhancement for the obliterated serial number in
his estimate of the guideline range. Motion to Vacate (#1) at 14-15. Petitioner alleges
that but for this advice, he would have accepted the first plea offer with the understanding
that he would receive 36 months of imprisonment. Id. at 16.
2.

Second Plea Offer

Petitioner contends as to the second plea offer that his retained attorney neglected
to calculate into his estimate an enhancement for obliteration of the gun’s serial number,
that such attorney “assured him that he would receive 41-51 months at sentencing,” and
that he misrepresented to him that they would still go forward with the suppression
hearing and the double jeopardy issue, using the plea agreement as a “precaution in case
the suppression hearing or double jeopardy claim did not work out.” Id. at 18-20.
Petitioner contends that during the recess of the Rule 11 hearing (discussed
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above), his attorney assured him he would receive 41 to 51 months of imprisonment,
even though the magistrate judge did not mention that specific range during the colloquy.
Id. at 22.
3.

Abandonment of the Suppression Motion

In his third contention, petitioner alleges that his retained attorney was ineffective
by abandoning the motion to suppress evidence seized during the search of his vehicle as
well as abandoning the contention that the federal prosecution constituted double
jeopardy based on the state conviction. He contends that due to such abandonment, he
accepted the plea “out of sheer desperation and helplessness.” Id. at 25.
B.

Discussion
1.

LeMaster Barred

“[B]ecause courts must be able to rely on the defendant’s statements made under
oath during a properly conducted Rule 11 plea colloquy,” when a defendant makes
“solemn declarations in open court affirming a plea agreement,” this testimony carries “a
strong presumption of verity.” United States v. Lemaster, 403 F.3d 216, 221 (4th Cir.
2005). The Fourth Circuit has held that “in the absence of extraordinary circumstances,
allegations in a § 2255 motion that directly contradict the petitioner’s sworn statements
made during a properly conducted Rule 11 colloquy are always ‘palpably incredible’ and
‘patently frivolous or false.’” Id. at 221-22 (citation omitted).
Petitioner does not allege that the Rule 11 was conducted improperly and
petitioner has failed to allege any conduct by his counsel that would circumvent the

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preclusive effect of Lemaster. Here, counsel has not admitted to being ineffective, and,
as it will be discussed below in the context of Strickland, counsel was highly effective. It
further appears that, based on a review of all the materials of record, petitioner was not an
“un-counseled defendant” and has not provided any evidence that he lacked the capacity
to either enter into a knowing and voluntary plea or to provide the court with truthful
answers. Absent “extraordinary circumstances,” none of which have been alleged and
none of which appear from a review of the record or in the PSR (which includes sections
on mental and physical health, as well as educational achievement), prevailing law
provides that once the truth of the sworn statements made during a Rule 11 colloquy is
established, any § 2255 request that would conflict with those averments should be
summarily dismissed. Id.
2.

Incorrect Plea Advice

In his Reply, petitioner argues that LeMaster has no application because the
answers he gave to the court at the Rule 11 proceedings and at sentencing were the
product of ineffective assistance of counsel. To the extent petitioner may be relying on
last year’s holding in Lafler v. Cooper, ___ U.S.___, 132 S.Ct. 1376 (2012) (see also
Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012)), which held that incorrect legal
advice which led a defendant to reject a plea offer amounts to ineffective assistance of
counsel, the Supreme Court has not held that such case established a new right that is
retroactively applicable to cases on collateral review. See In re King, 697 F.3d 1189,
1189 (5th Cir .2012) (per curiam); Hare v. United States, 688 F.3d 878–80 (7th
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Cir.2012); Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir.2012); In re Arras,
No. 12–2195 (10th Cir. Dec. 11, 2012) (denying authorization to file a second or
successive Section 2255 motion because neither Lafler nor Frye established a new rule of
constitutional law); In re Perez, 682 F.3d 930, 932–34 (11th Cir.2012); Mendez-Valdez
v. United States, 2013 WL 609768 (W.D.N.C. Feb. 19, 2013).
C.

Ineffective Assistance Claim Barred as Raised on Direct Review

A Section 2255 cannot ordinarily be made on basis of issues litigated on direct
appeal. Boeckenhaupt v. United States, 537 F.2d 1182 (4th Cir.), cert. denied, 429 U.S.
863 (1976).

Here, the appellate court noted it could “find no conclusive support for

Randall’s claim” of ineffective assistance of counsel. United States v. Randall, 478
F.App’x. at n.* Thus, such claim may also be barred as rejected on the merits on direct
review.
D.

Substantive Review
Despite the bars imposed under LeMaster and Boeckenhaupt, as well as the

inapplicability of Lafler, the court in an abundance of caution has conducted a further
review of petitioner’s claims under the standards set forth in Strickland v. Washington,
466 U.S. 687(1984).
To establish a claim of ineffective assistance of counsel, a petitioner must show
that counsel’s performance fell below an objective standard of reasonableness, and that
he was prejudiced by such constitutionally deficient representation. Strickland, 466 U.S.

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at 687-91. In order to satisfy the performance prong, the petitioner “must show that
counsel’s representation fell below an objective standard of reasonableness.” Id., at 68788. In making this determination, there is a strong presumption that counsel’s conduct
was within the wide range of reasonable professional assistance. Id., at 689; see also
Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992). The prejudice
prong is satisfied by showing that
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.
Id., at 694. The petitioner “bears the burden of proving Strickland prejudice.” Fields,
956 F.2d at 1297 (citation omitted).

If the petitioner fails to meet this burden, a

reviewing court need not consider the performance prong.”

Id., at 1290, citing

Strickland, 466 U.S. at 697.
1.

Prejudice

In considering the prejudice prong of the analysis, the court must not grant relief
solely because the petitioner can show that, but for counsel’s performance, the outcome
would have been different. Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998), cert.
denied, 528 U.S. 855 (1999). 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 U.S. 364 U.S. 364, 369 (1993).
In this case, petitioner’s case was in no manner prejudiced by his counsel. Quite
the opposite: counsel was highly effective in achieving a favorable result. The court has
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again reviewed the Transcript of the Motion to Withdraw Plea Hearing as well as the
motions petitioner contends were meritorious and should have been pursued by counsel.
As to the Motion to Dismiss based on Double Jeopardy, such a motion is wholly without
merit as a person can be prosecuted in state court and federal court for the same conduct
under the separate sovereign rule. Indeed, the Supreme Court has long held that “States
are separate sovereigns with respect to the Federal Government because each State’s
power is derived from its own ‘inherent sovereignty,’ not from the Federal Government.”
Heath v. Alabama, 474 U.S. 82, 89 (1985) (citation omitted).

As to petitioner’s

contention that his Motion to Suppress was meritorious, the Court of Appeals for the
Fourth Circuit has sustained the warrantless search of automobiles based, as here, on an
officer’s detection of the odor of alcohol on a person as well as the discovery of an open
container.

United States v. Coleman, 100 F.App’x. 202, 204 (4th Cir. 2004)

(unpublished); United States v. Washington, 338 Fed. App’x. 316, 318 (4th Cir. 2009)
(unpublished).
As to contentions of misadvising petitioner as to the likely advisory guidelines
range, the court already found at the Motion to Withdraw Plea hearing that retained
counsel’s testimony was more credible as to what advice was actually given.
Specifically, retained counsel testified that at two separate meetings in December 2010 he
advised petitioner that his initial “estimate” of 41 to 51 months would now be higher as a
result of his discovery of petitioner’s earlier crime of violence (which increased his base
offense level) and the obliteration of the serial number on the gun.

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Thus, petitioner cannot satisfy the prejudice prong based on failure to pursue what
were meritless motions as well as contentions that retained counsel misadvised him.
2.

Performance

While failing to satisfy the prejudice prong negates consideration of the
performance prong, the court has considered retained counsel’s performance in an
abundance of caution. A reviewing court “must give deference to counsel’s reasonable
strategic decisions, and the defendant must, in fact, overcome a presumption that
counsel’s performance was within the range of competence demanded from attorneys
defending criminal cases.” United States v. Porter, 2009 WL 825757, *3 (W.D.Va.
March 26, 2009) (unpublished) (citing Strickland). Thus, a reviewing court must avoid
the temptation of hindsight and instead “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689. In this case, the court has had a rare, first-hand opportunity to review
retained counsel’s performance when it heard counsel’s testimony. Clearly, counsel
provided petitioner with proper advice at every turn, counseled him that it was his choice
whether to take a plea offer, and pursued with the government and the court avenues of
concern petitioner asked counsel to pursue. Thus, counsel’s performance was well within
the range of competence demanded for attorneys defending criminal cases.
ORDER
IT IS, THEREFORE, ORDERED that for the reasons herein provided,
petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (#1) is DENIED and
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petitioner’s motion is DISMISSED with prejudice.

Denial of Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, this 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, 484–85
(2000) (in order to satisfy § 2253(c) when court denies relief on procedural grounds, a
petitioner must demonstrate both that the dispositive procedural ruling is debatable, and
that the petition states a debatable claim of the denial of a constitutional right).

Signed: July 15, 2013

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