Davis v. USA
Filing
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ORDER denying and dismissing Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Robert J. Conrad, Jr on 12/7/15. (Pro se litigant served by US Mail.)(ssh)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13-cv-688-RJC
(3:12-cr-52-RJC-2)
URTIS DAVIS,
)
)
Petitioner,
)
)
vs.
)
ORDER
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
____________________________________)
This matter is before the Court on Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255, (Doc. No. 1), on the Government’s Response in Opposition,
(Doc. No. 10), on Petitioner’s Reply, (Doc. No. 11), and on Petitioner’s Motion for Evidentiary
Hearing, (Doc. No. 12).
I. BACKGROUND
Beginning in 2011, Petitioner participated in a crack cocaine distribution operation in
Charlotte, North Carolina. (Crim. Case No. 3:12-cr-52-RJC-2, Doc. No. 32 at 4-7: PSR). While
investigating, undercover officers purchased crack cocaine from Petitioner. (Id. at 5-6). During
a search of Petitioner’s residence, officers recovered cocaine, baking soda, and related materials;
thousands of dollars in United States currency; and numerous firearms. (Id. at 6-7). On
February 21, 2012, Petitioner was charged by a grand jury in the Western District of North
Carolina with two counts of possession with intent to distribute crack cocaine and one count of
conspiracy to do so, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(C) and 21 U.S.C. §§ 846.
(Id., Doc. No. 3: Sealed Indictment). On March 7, 2012, the Government filed an Information
under 21 U.S.C. § 851, which triggered increased maximum penalties in light of Petitioner’s
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criminal history. (Id., Doc. No. 14: Information).
On June 14, 2012, Petitioner pled guilty, without a written plea agreement, to each of the
three counts against him. (Id., Doc. No. 23: Acceptance and Entry of Guilty Plea). Although no
written plea agreement was signed, the Government agreed to withdraw the Information it had
previously filed under 21 U.S.C. § 851. (Id., Doc. No. 45 at 8-9; 14: Transcript of Plea and Rule
11 Hearing). This Court conducted a plea colloquy and found that Petitioner’s guilty plea was
knowingly and voluntarily made and that Petitioner understood the charges, potential penalties,
and consequences of his plea. (Id. at 16). During the colloquy, among other things, the Court
described the charges to Petitioner, and the Government described the maximum penalties. (Id.
at 8-9). Petitioner confirmed under oath that he had discussed with his attorney the charges and
maximum penalties and that Petitioner understood them. (Id. at 9; 13). Petitioner also confirmed
under oath that he had spoken to his attorney about how the United States Sentencing Guidelines
might apply to his case; that he understood that the Court would not be able to determine his
sentence until later; and that he understood that he would remain bound by his plea even if the
sentence was more severe than he expected. (Id. at 9-11). During his plea colloquy, Petitioner
affirmed specifically that he had enough time to discuss with his attorney any possible defenses
he might have to the charges. (Id. at 14). He also explicitly affirmed that he was satisfied with
the services of his attorney. (Id.). When asked if he would like to say anything else about the
services of his attorney, he said, “I’m satisfied, that’s all I can say.” (Id. at 15).
On January 31, 2013, this Court sentenced Petitioner to a term of imprisonment of 180
months on each count, to be served concurrently, which was within the sentencing guidelines
range of 151-188 months. (Id., Doc. No. 46 at 4; 11: Sentencing Tr.). The Court determined that
Petitioner was a career offender under U.S.S.G. § 4B1.1 based on two prior North Carolina
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convictions. (Id., Doc. No. 32 at 8). Specifically, Petitioner had been convicted of robbery with
a dangerous weapon and of manufacturing, selling, delivering, or possessing a controlled
substance within 1,000 feet of a school. (Id.). His sentence as a career offender was based on a
total offense level of 29 and a criminal history category of VI. (Id., Doc. No. 46 at 4). Petitioner
appealed, and the Fourth Circuit subsequently affirmed this Court’s judgment in an unpublished
opinion. United States v. Davis, 538 Fed. App’x 262 (2013). Petitioner placed the petition in the
prison system for mailing on December 6, 2013, and it was stamp-filed in this Court on
December 12, 2013. Petitioner asserts seven claims of ineffective assistance of trial counsel in
the petition and accompanying memorandum. (Doc. Nos. 1; 1-1).
II. STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to
promptly examine motions to vacate, along with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the
claims set forth therein. After examining the record in this matter and the parties’ memoranda,
the Court finds that the motion to vacate can be resolved without an evidentiary hearing based on
the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir.
1970).
III. DISCUSSION
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions,
the accused has the right to the assistance of counsel for his defense. See U.S. CONST. amend.
VI. To show ineffective assistance of counsel, Petitioner must first establish a deficient
performance by counsel and, second, that the deficient performance prejudiced him. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In making this determination, there is
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“a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689; see also United States v. Luck, 611 F.3d 183, 186 (4th Cir.
2010). Furthermore, in considering the prejudice prong of the analysis, the Court “can only grant
relief under . . . Strickland if the ‘result of the proceeding was fundamentally unfair or
unreliable.’” Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v. Fretwell,
506 U.S. 364, 369 (1993)). Under these circumstances, the petitioner “bears the burden of
affirmatively proving prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the
petitioner fails to meet this burden, a “reviewing court need not even consider the performance
prong.” United States v. Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), opinion vacated on other
grounds, 218 F.3d 310 (4th Cir. 2000).
To establish prejudice in the context of a guilty plea, a petitioner must show that “there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007) (quoting
Hill v. Lockhart, 474 U.S. 52, 59 (1985)). In evaluating such a claim, statements made by a
defendant under oath at the plea hearing carry a “strong presumption of verity” and present a
“formidable barrier” to subsequent collateral attacks. Blackledge v. Allison, 431 U.S. 63, 73-74
(1977). Indeed, “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 dismiss . .
. any § 2255 motion that necessarily relies on allegations that contradict the sworn statements.”
United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005).
1. Petitioner’s contention that trial counsel gave him constitutionally deficient advice
before sentencing about the prerequisites for establishing that Petitioner’s prior
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convictions qualified as predicates for a career offender enhancement under
U.S.S.G. § 4B1.1.
Petitioner first contends that his trial counsel rendered ineffective assistance by giving him
constitutionally deficient advice before sentencing about the prerequisites for establishing that
Petitioner’s prior convictions qualified as predicates for a career offender enhancement under
U.S.S.G. § 4B1.1. (Doc. No. 1-1 at 9). Petitioner alleges that his attorney “failed to inform him
that the courts must have (a) the statutory definition of the offense in question, (b) the charging
document, (c) a written plea agreement, (d) the transcript of a colloquy between the trial judge
and the accused in which the factual basis for the plea was confirmed by [the] accused, (e) and
[an] explicit factual finding by the trial judge to which the accused assen[t]ed.” (Id. at 9-10
(citing Shepard v. United States, 544 U.S. 13 (2005)). Petitioner asserts that if his attorney had
informed him of these requirements, he “would have contested the career-offender
enhancement.” (Id. at 10).
Petitioner’s claim is without merit, as Petitioner’s prior convictions qualified categorically as
predicates for a career offender enhancement. Under the career offender guidelines, an offense
qualifies as a “crime of violence” if it is punishable by more than one year of imprisonment and
either “(1) has as an element the use, attempted use, or threatened use of physical force against
the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of physical injury
to another.” U.S.S.G. § 4B1.2(a). To determine if a prior conviction constitutes a crime of
violence, courts use a “categorical approach, looking only to the statutory definitions of the prior
offenses, and not to the particular facts underlying those convictions.” United States v. Brandon,
247 F.3d 186, 188 (4th Cir. 2001) (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)).
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In a “narrow range of cases,” however, a “state statute can be violated in several ways,” some of
which would fall within the definition of a “crime of violence,” and some of which would not.
See id. When a prior conviction is for violating such a “divisible statute”—one that sets out one
or more of the elements in the alternative— courts use a “modified categorical approach.”
Descamps v. United States, 133 S. Ct. 2276, 2279 (2013); United States v. Alston, 611 F.3d 219,
224 (4th Cir. 2010). In using this approach, courts may only rely on documents with “the
conclusive significance of a prior judicial record,” such as charging papers, written plea
agreements, and jury instructions. See Shepard, 544 U.S. at 20.
Here, the statutes governing Petitioner’s predicate offenses are not divisible, and the
Court was, therefore, not required to consult judicial records to determine whether they qualified
as predicates. First, Petitioner’s North Carolina conviction for robbery with a dangerous
weapon, pursuant to N.C. GEN. STAT. § 14-87(a), categorically qualifies as a conviction for a
“crime of violence” under U.S.S.G. § 4B1.1. See United States v. Cook, 510 Fed. App’x 231,
232 (4th Cir. 2013) (citing United States v. White, 571 F.3d 365, 371 n.5 (4th Cir. 2009) (finding
that “the substantive North Carolina offense of robbery with a dangerous weapon is a violent
felony” under the Armed Career Criminal Act)); see also United States v. Martin, 215 F.3d 470,
474 n.4 (4th Cir. 2000) (noting that the term “violent felony” under the Armed Career Criminal
Act is “almost identical” to the definition of “crime of violence” under U.S.S.G. § 4B1.1).
Furthermore, Petitioner’s North Carolina conviction for manufacture, sale, delivery, or
possession with intent to manufacture, sell, or deliver a controlled substance within 1,000 feet of
a school, pursuant to N.C. GEN. STAT. § 90-95(a)(1), (e)(8), qualifies categorically as a
“controlled substance offense” because it prohibits the “manufacture, import, export,
distribution, or dispensing of a controlled substance” or “the possession of a controlled substance
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. . . with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b).
See United States v. Johnson, 246 F.3d 330, 332 (4th Cir. 2001) (noting that it was undisputed
that a New Jersey conviction for possession of a controlled substance with the intent to distribute
within 1,000 feet of a school was a controlled substance offense under U.S.S.G. § 4B1.2(b)),
abrogated on other grounds by Begay v. United States, 553 U.S. 137 (2008); United States v.
Brown, No. 5:10-cr-322-D, 2011 WL 3734822, at *3 (E.D.N.C. Aug. 24, 2011) (finding that the
petitioner’s convictions for possession of a controlled substance with the intent to distribute
within 1,000 feet of a school qualified as a controlled substance offense under U.S.S.G. §
4B1.2(b)), aff’d, 488 Fed. App’x 662 (4th Cir. 2012). Because Petitioner was properly
designated as a career offender, his attorney’s failure to advise him about the prerequisites for
establishing that Petitioner’s prior convictions qualified as predicates for a career offender
enhancement was not deficient, nor can Petitioner establish prejudice.
In sum, Petitioner’s first claim of ineffective assistance of counsel is without merit.
2. Petitioner’s contention that trial counsel rendered ineffective assistance because
he failed to move, pursuant to U.S.S.G. § 4A1.3(b)(1), for a downward departure on
the ground that Petitioner’s criminal history category substantially overrepresented
the seriousness of Petitioner’s criminal history.
Petitioner next contends that his trial counsel rendered ineffective assistance because he
failed to move, pursuant to U.S.S.G. § 4A1.3(b)(1), for a downward departure on the ground that
Petitioner’s criminal history category substantially overrepresented the seriousness of
Petitioner’s criminal history. (Doc. No. 1-1 at 10). U.S.S.G. § 4A1.3(b)(1) provides that “[i]f
reliable information indicates that the defendant’s criminal history category substantially overrepresents the seriousness of the defendant’s criminal history or the likelihood that the defendant
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will commit other crimes, a downward departure may be warranted.” Petitioner has not shown
that his criminal history category VI substantially overrepresented the seriousness of his criminal
history or the likelihood that Petitioner would reoffend. Thus, Petitioner cannot show that this
Court would have granted a downward departure if Petitioner’s attorney had moved for such
departure under U.S.S.G. § 4A1.3. Indeed, this Court considered Petitioner’s criminal history in
detail when imposing his sentence. (Crim. Case No. 3:12-cr-52-RJC-2, Doc. No. 46 at 6-7). The
Court specifically recounted the string of convictions for various offenses that Petitioner received
from 2000 to 2011, when he began participating in the offenses to which he pled guilty. (Id. at
12). The Court observed, “[T]here’s almost a wall-to-wall criminal history scenario where he is
being released from prison, and almost immediately going back into criminal activity,” and the
Court ultimately rejected Petitioner’s request for a sentence at the low end of the guidelines. (Id.
at 11-12). Moreover, Petitioner’s attorney competently advocated for Petitioner by urging the
Court to impose a sentence at the low end of the guidelines range. (Id. at 6-7). Thus, Petitioner
has failed to show that counsel was ineffective for failing to move for a downward departure
under U.S.S.G. § 4A1.3(b)(1).
In sum, Petitioner’s second claim of ineffective assistance of counsel is without merit.
3. Petitioner’s contention that trial counsel rendered ineffective assistance because
he failed to move, pursuant to U.S.S.G. § 3B1.2, for a downward adjustment on the
ground that Petitioner’s participation in the offense was minor or minimal.
Petitioner next contends that his trial counsel rendered ineffective assistance because he
failed to move, pursuant to U.S.S.G. § 3B1.2, for a downward adjustment on the ground that
Petitioner’s participation in the offense was minor or minimal. (Doc. No. 1-1 at 12). U.S.S.G. §
3B1.2 provides for a decrease in a defendant’s offense level based on the sentencing court’s
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finding that the defendant was a minimal or minor participant in the criminal activity.
Petitioner’s claim is without merit because, as the Court has already found, Petitioner was
properly designated as a career offender under U.S.S.G. § 4B1.1, and he was therefore not
eligible for an offense-level reduction under U.S.S.G. § 3B1.2. See United States v. Morton, No.
91-5262, 1991 WL 127605, at *1 (4th Cir. July 16, 1991) (unpublished) (“[C]areer offenders are
precluded from claiming a ‘minor role’ offense level reduction.”). Therefore, counsel’s failure to
move for a downward adjustment was not deficient because it would have been a meritless
motion.
In sum, Petitioner’s third claim of ineffective assistance of counsel is without merit.
4. Petitioner’s contention that trial counsel was ineffective for failing to investigate
Petitioner’s criminal history category before Petitioner pled guilty.
Petitioner next contends that his trial counsel rendered ineffective assistance for “fail[ing]
to investigate his criminal-history category” before Petitioner pled guilty. (Doc. No. 1-1 at 12).
Petitioner’s claim fails because his allegation is contradicted by the record of his Rule 11
colloquy, during which he explicitly affirmed under oath that he had discussed with his attorney
how the sentencing guidelines might apply to his case and that he was satisfied with his
attorney’s representation. (Crim. Case No. 3:12-cr-52-RJC-2, Doc. No. 45 at 9-11; 14). See
United States v. Lemaster, 403 F.3d 216, 222-23 (4th Cir. 2005). Moreover, Petitioner does not
allege that, but for his counsel’s alleged error, he would have insisted on proceeding to trial. Hill
v. Lockhart, 474 U.S. 52, 58 (1985) (where a defendant has pled guilty, he must show that but
for counsel's unprofessional errors, he would have gone to trial instead of pleading guilty). Thus,
his claim fails.
In sum, Petitioner’s fourth claim of ineffective assistance of counsel is without merit.
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5. Petitioner’s contention that trial counsel was ineffective for “fail[ing] to fully
advise him to the nature of the charges and the maximum possible penalty for the
offense” before Petitioner pled guilty.
Petitioner next contends that his trial counsel rendered ineffective assistance for “fail[ing]
to fully advise him to the nature of the charges and the maximum possible penalty for the
offense” before Petitioner pled guilty. (Doc. No. 1-1 at 12). Petitioner’s allegation is again
contradicted by the record of his Rule 11 colloquy, during which Petitioner explicitly confirmed
under oath that he had discussed the charges and maximum penalties with his attorney. (Crim.
Case No. 3:12-cr-52-RJC-2, Doc. No. 45 at 9; 13). Moreover, Petitioner cannot establish
prejudice because the charges against him and the maximum penalties were described on the
record during Petitioner’s plea colloquy, and Petitioner affirmed under oath that he understood
them. (Id. at 8-9; 13). Petitioner nevertheless subsequently affirmed that he still wished to plead
guilty. (Id. at 13). Accordingly, Petitioner cannot establish that he would have insisted on going
to trial had he known about the charges and the maximum penalties.
In sum, Petitioner’s fifth claim of ineffective assistance of counsel is without merit.
6. Petitioner’s contention that trial counsel was ineffective for “fail[ing] to properly
advise petitioner of the sentencing guidelines” before Petitioner pled guilty.
Petitioner next contends that his trial counsel rendered ineffective assistance for “fail[ing]
to properly advise petitioner of the sentencing guidelines” before Petitioner pled guilty. (Doc.
No. 1-1 at 12). This allegation is also contradicted by the record of his Rule 11 colloquy, during
which Petitioner explicitly affirmed under oath that he had discussed with his attorney how the
sentencing guidelines might apply to his case and that he was satisfied with his attorney’s
representation. (Crim. Case No. 3:12-cr-52-RJC-2, Doc. No. 45 at 9-11). Moreover, Petitioner
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cannot establish prejudice, as he does not purport to allege that he would not have pled guilty and
would have, instead, proceeded to trial. Instead, he asserts that if he had been “properly
informed of the guidelines as a career offender,” he “would have petitioned for a plea agreement
with the government.” (Doc. No. 1-1 at 13). Petitioner, however, has no right to be offered a
plea agreement. See Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012). Moreover, he has not
alleged, and cannot establish, that the Government would have offered, and the Court would
have accepted, a plea agreement permitting Petitioner to avoid his designation as a career
offender.
In sum, Petitioner’s sixth claim of ineffective assistance of counsel is without merit.
7. Petitioner’s contention that counsel was ineffective because he failed to challenge
the career offender designation based on Petitioner’s conviction for manufacture, sale,
delivery, or possession with intent to manufacture, sell, or deliver a controlled
substance within 1,000 feet of a school.
Finally, Petitioner contends that his trial counsel rendered ineffective assistance because he
failed to challenge the career offender designation based on Petitioner’s North Carolina
conviction for manufacture, sale, delivery or possession with intent to manufacture, sell, or
deliver a controlled substance within 1,000 feet of a school, under N.C. GEN. STAT. § 9095(a)(1), (e)(8). Petitioner contends that the offense is not a “crime of violence” and was,
therefore, not a proper conviction for purposes of the career offender enhancement. (Doc. No. 11 at 13). Petitioner’s claim fails. As the Court has discussed, career-offender predicate offenses
are not limited to crimes of violence. They also include controlled substance offenses. See
U.S.S.G. § 4B1.1(a). Moreover, as the Court has already discussed, the drug conviction upon
which Petitioner’s career offender status was based is a controlled substance offense within the
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meaning of U.S.S.G. § 4B1.1(a).
In sum, Petitioner’s seventh claim of ineffective assistance of counsel is without merit.
IV.
CONCLUSION
For the reasons stated herein, Petitioner’s § 2255 petition is denied and dismissed.
IT IS THEREFORE ORDERED THAT:
1.
Petitioner’s § 2255 motion, (Doc. No. 1), is denied and dismissed with prejudice.
2.
Petitioner’s Motion for Evidentiary Hearing, (Doc. No. 12), is DENIED.
2.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 and Section 2255 Cases, this Court declines to issue a
certificate of appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 338 (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) (when relief is denied on procedural grounds, a petitioner must
establish both that the dispositive procedural ruling is debatable and that the
petition states a debatable claim of the denial of a constitutional right).
Signed: December 7, 2015
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