Lackey 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 Richard Voorhees on 5/19/2014. (Pro se litigant served by US Mail.)(cbb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:14-CV-00054-RLV
(5:11-CR-00052-RLV-1)
GARY RICHARD LACKEY,
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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
ORDER
THIS MATTER comes before the Court on an initial review of Petitioner’s motion to
vacate, set aside or correct sentence which was filed pursuant to 28 U.S.C. § 2255. No response
is necessary from the Government.
I.
BACKGROUND
On February 25, 2011, the Government filed a criminal complaint against Petitioner and
a co-defendant and charged them with one count of conspiracy with intent to possess and
distribute marijuana, in violation of 21 U.S.C. §§ 846, 841(a) and 841(b) (Count 1), and one
count of possession of a firearm in furtherance of the conspiracy drug offense, in violation of 18
U.S.C. § 924(c) (Count 2). (5:11-CR-00052, Doc. No. 1: Complaint). Petitioner was arrested that
same day and appointed counsel and he later executed a written waiver of his right to
indictment.1 The Government filed an information pursuant to 21 U.S.C. § 851 notifying
Petitioner of its intention to seek enhanced penalties based on his prior conviction in the Middle
District of North Carolina on one count of distribution and possession with intent to distribute
Petitioner’s court appointed counsel was allowed to withdraw after Noell Tin filed a general appearance of
counsel.
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cocaine. (Id., Doc. No. 23). Petitioner entered into a written plea agreement with the Government
wherein he agreed to plead guilty to Count 1 in exchange for the Government’s agreement to
dismiss Count 2 at the appropriate time. (Id., Doc. No. 24: Plea Agreement).
On September 20, 2011, Petitioner appeared with counsel for his Plea and Rule 11
hearing and he was placed under oath.2 Petitioner averred that he had reviewed the elements of
Count 1 with his attorney and that he understood the charge and the potential term of
imprisonment he faced upon conviction which was no less than ten years and not more than life
imprisonment based on his prior drug conviction. Petitioner stated that he had reviewed how the
Sentencing Guidelines might apply to his case and that he could receive a sentence that was
greater or less than the sentence called for by the Guidelines. In addition, Petitioner averred that
he may receive a sentence that was more severe than he expected but that he would nevertheless
be bound by his guilty plea and have no right to withdraw it.
The Government summarized the terms of the plea agreement and in particular, the
Government noted that the § 851 Information had been filed and that if Petitioner was convicted
he faced a statutory term of no less than 10 years and not more than life imprisonment. Petitioner
acknowledged that he had carefully reviewed the plea agreement with his attorney and that he
understood and agreed with the terms of the plea agreement. Petitioner confirmed that no one
had threatened, intimidated or forced him to enter his guilty plea and that he was satisfied with
the services of his attorney. Petitioner signed the Acceptance and Entry of Guilty Plea form in
open court and the court accepted Petitioner’s plea of guilty after finding that it was knowingly
and voluntarily entered; that Petitioner had reviewed the charge against him and the minimum
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Mr. Noell Tin did not appear with Petitioner for his Plea and Rule 11 hearing. Instead, an attorney with his firm,
Ms. Melissa Owen, appeared on Petitioner’s behalf and Petitioner expressly informed the court that he consented to
proceed with her representation during the hearing. (Id., Doc. No. 47: Tr. of Plea and Rule 11 Hearing at 2, 5).
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and maximum penalties he faced with his attorney; and that Petitioner understood the minimum
and maximum penalties he faced. [Id., Doc. No. 26: Acceptance and Entry of Guilty Plea).
On June 5, 2012, Petitioner appeared with Mr. Tin for his sentencing hearing. The Court
addressed the Petitioner and confirmed that he understood the charge against him and potential
penalties, and the Court affirmed the magistrate judge’s acceptance and entry of guilty plea. The
Court also observed that the plea agreement included Petitioner’s stipulation that he had a valid
prior drug conviction under § 851 that subjected him to a statutory term of no less than 10 years
and not more than life imprisonment. (Plea Agreement at 1-2; Doc. No. 45: Tr. of Sentencing
Hearing at 4). Petitioner was sentenced to the statutory mandatory-minimum of 120-months’
imprisonment and he filed a notice of appeal to the United States Court of Appeals for the Fourth
Circuit. (Id., Doc. No. 39: Judgment in a Criminal Case).
On appeal, Petitioner’s counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), and contended that there were no meritorious issues to present on appeal, but
inquired whether the court complied with the requirements of Rule 11 of the Federal Rules of
Criminal Procedure during his plea hearing. Petitioner filed a pro se supplemental brief and
raised a claim of ineffective assistance of counsel arguing that his counsel failed to explain that
he faced a mandatory minimum sentence based on his § 851 Information. The Court rejected
appellate counsel’s challenge to the Rule 11 hearing after finding that the magistrate judge
complied with the requirements of Rule 11 during his plea colloquy. Notably, the Court found
that the magistrate judge informed Petitioner about the sentence he faced and the Court
confirmed that Petitioner’s guilty plea was knowingly and voluntarily entered. The Court
dismissed Petitioner’s pro se ineffective assistance of counsel claim after finding that the record
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did not conclusively establish ineffectiveness and affirmed Petitioner’s judgment in all respects.
United States v. Lackey, 505 F. App’x 239 (4th Cir. 2012).
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 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 three claims of ineffective assistance of trial
counsel. First, Petitioner argues that he was denied his Sixth Amendment right to effective
assistance of counsel because his counsel induced him into pleading guilty by providing
misleading advice about the possible sentence he could receive. (5:14-CV-00054, Doc. No. 1 at
4). Second, Petitioner argues that his counsel was ineffective in failing to advise him of the
collateral consequences of pleading guilty. (Id. at 5). Finally, Petitioner argues that his counsel
was ineffective by not moving to withdraw his guilty plea after the Government committed acts
of bad faith. (Id. at 7).
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.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In
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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 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 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).
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A.
Ground One
Petitioner first contends that that his trial counsel was ineffective because his counsel
induced him to plead guilty by erroneously informing him about the possible sentence he faced
upon conviction. This argument is without merit because it is plain from a review of the record
that Petitioner in fact knew what penalty he faced, and his assertions here, which are submitted
under oath, are directly contradicted by his sworn assertions during his Rule 11 hearing.
During his Rule 11 hearing, Petitioner averred that he had reviewed the potential term of
imprisonment he faced upon conviction and that he had reviewed and agreed with the terms of
his plea agreement which included his acknowledgement that he understood that he faced a
mandatory term of not less than ten years and not more than life based on the conviction
identified in the Government’s § 851 Information. Petitioner also averred that no one had
promised him anything in exchange for his guilty plea and that there were no agreements that
were not contained in the written plea agreement.
“[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 29596 (quoting Blackledge, supra). Furthermore, even assuming that Petitioner’s assertion that his
attorney mislead him about his potential sentence is true, the information provided by the court
during his Rule 11 hearing clearly informed Petitioner that he faced no less than 10 years and not
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more than life imprisonment based on the § 851 Information and he averred that he understood
this potential sentence. See United States v. Foster, 68 F.3d 86, 88 (4th Cir. 1995) (recognizing
that “any misinformation [defendant] may have received from his attorney was corrected by the
trial court at the Rule 11 hearing, and thus [defendant] was not prejudiced.”); United States v.
Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992) (en banc), cert. denied, 513 U.S. 1060 (1994)
(“[I]f the information given by the court at the Rule 11 hearing corrects or clarifies the earlier
erroneous information given by the defendant’s attorney and the defendant admits to
understanding the court’s advice, the criminal justice system must be able to rely on the
subsequent dialogue between the court and the defendant.”).
For the foregoing reasons, Petitioner’s first claim for relief will be denied.
B.
Ground Two
Petitioner’s second claim that his counsel did not inform him about the collateral
consequences of his decision to enter his guilty plea fares no better because it depends on a
finding that his guilty plea was not knowingly and voluntarily entered. Again, as the Court has
already observed, Petitioner stipulated in his plea agreement that the prior drug offense that the
Government noticed under § 851 subjected him to a statutory minimum of 10-years in prison and
a maximum term of life. See (5:11-CV-00052, Doc. No. 24: Plea Agreement ¶ 4: “Defendant
stipulates, agrees, and affirms that he has a valid predicate prior felony conviction(s) under 21
U.S.C. 851 and that he has no challenge to the same; thus he is facing a mandatory statutory
sentence of not less than ten (10) years nor more than life imprisonment, and a $10,000,000
fine.”). And Petitioner admitted under oath during his Rule 11 hearing that he understood the
terms of his plea agreement and that he agreed with those terms, and that he understood the term
of imprisonment he faced and other collateral consequences he faced following conviction thus
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any alleged failure to inform him of the consequences of his guilty plea was corrected during his
Rule 11 hearing.
For the reasons stated herein, this claim for relief will be denied.
C.
Ground Three
In his final claim for relief, Petitioner contends that his trial counsel should have moved
to withdraw his guilty plea after the Government acted in bad faith. This claim is likewise
without merit. Petitioner argues that the Government filed the § 851 Information “in contra to the
spirit and express terms of the Plea Agreement entered into the day before.” (5:14-CV-00054,
Doc. No. 1-1 at 10). On September 16, 2011, the Government filed its § 851 Information and the
plea agreement was filed that same day. While it is true that the plea agreement was signed by
the Petitioner and his counsel before the Government filed the § 851 Information, the plea
agreement expressly provides that Petitioner has a qualifying conviction under § 851, and that he
stipulates that the prior conviction subjects him to no less than 10 years’ imprisonment.
Accordingly, there is simply no showing of bad faith by the Government because each party
agreed to the existence and application of the § 851 enhancement in the plea agreement and
during the Rule 11 hearing. Moreover, Petitioner never moved to withdraw from the plea
agreement and he knowingly and voluntarily proceeded with his Rule 11 hearing and entered his
guilty plea.
IV.
CONCLUSION
For the reasons set forth herein, the Court finds that Petitioner’s § 2255 motion is without
merit and it will be denied and dismissed.
IT IS, THEREFORE, ORDERED that Petitioner’s motion to vacate, set aside, or
correct sentence is DENIED and DISMISSED. [Doc. Nos. 1].
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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 as Petitioner has not
made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); MillerEl 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 debatable, and that the petition states a debatably valid claim of
the denial of a constitutional right).
The Clerk of Court is respectfully directed to close this civil case.
IT IS SO ORDERED.
Signed: May 19, 2014
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