Jones v. USA

Filing 4

ORDER denying and dismissing with prejudice Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Kenneth D. Bell on 6/4/2021. (Pro se litigant served by US Mail.)(nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:19-cv-134-KDB
5:17-cr-57-KDB-DCK-1
SILVER ELISE JONES,

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

ORDER

THIS MATTER is before the Court on Petitioner’s pro se 28 U.S.C. § 2255 Motion to
Vacate Sentence, (Doc. No. 1).
I.

BACKGROUND

Petitioner was charged in the underlying criminal case with: Count One, methamphetamine
and heroin trafficking conspiracy (21 U.S.C. § 841(a)(1), 846); Count Two, possession with intent
to distribute methamphetamine and fentanyl (21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(C)); Count
Three, possession of a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)(1));
and Count Four, possession of a firearm and ammunition by a felon (18 U.S.C. § 922(g)(1)). (5:17cr-57 (“CR”) Doc. No. 15) (Superseding Bill of Indictment). The United States filed an
Information pursuant to 21 U.S.C. § 851 setting forth a prior Georgia conviction for felony
possession of methamphetamine. (CR Doc. No. 11).
Petitioner pleaded guilty to Counts One, Two, and Four pursuant to a written Plea
Agreement. (CR Doc. No. 17 at 1). Petitioner admitted that she is, in fact, guilty as charged in
those offenses and that the § 851 Information is valid and accurate. (CR Doc. No. 17 at 1-2).The
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Government agreed to dismiss Count Three and withdraw the § 851 Information at the time of
sentencing. (Id.). The Plea Agreement sets forth Petitioner’s sentencing exposure of: a minimum
of 10 years’ imprisonment and a maximum of life for methamphetamine and heroin trafficking
conspiracy and possession with intent to distribute methamphetamine; a maximum of 20 years’
imprisonment for possession with intent to distribute fentanyl; and a maximum of life
imprisonment for the firearm possession. (CR Doc. No. 17 at 2). The Plea Agreement states that:
the Court would consider the advisory U.S. Sentencing Guidelines; the Court had not yet
determined the sentence; any estimate of the sentence that Petitioner might receive was a prediction
rather than a promise; the Court would have the final discretion to impose any sentence up to the
statutory maximum and would not be bound by the parties’ recommendations or agreements; and
Petitioner would not be permitted to withdraw her plea as a result of the sentence imposed. (Id.).
The parties agreed to jointly recommend a base offense level of 36 based on a marijuana
equivalent of at least 30,000 kilograms but less than 90,000 kilograms because the amount of
controlled substance that was known to or reasonably foreseeable to the Petitioner was: 979.6
grams of methamphetamine (actual); 10 kilograms of mixture and substance containing a
detectable amount of methamphetamine; 3 kilograms of mixture and substance containing a
detectable amount of heroin; and 28.14 grams of fentanyl. (CR Doc. No. 17 at 3). The parties
further agreed that: the entry of Petitioner’s plea was timely; Petitioner would not be eligible for
the “safety valve” provision of 18 U.S.C. § 3553(f) and U.S. Sentencing Guidelines §§
2D1.1(b)(17) and 5C1.2; either party may seek a departure or variance from the applicable
guideline range; and a two-level weapon enhancement pursuant to § 2D1.1(b)(1) would apply.
(CR Doc. No. 17 at 3).
The Petitioner stipulated to the existence of a factual basis to support the guilty plea as set
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forth in the Factual Basis filed along with the Plea Agreement. (CR Doc. No. 17 at 5). She agreed
that the Factual Basis may be used by the Court, United States Probation Office, and United States
without objection for any purpose, including to determine the applicable advisory guideline range
or the appropriate sentence. (Id.). The Plea Agreement sets forth the rights Petitioner was waiving
by pleading guilty, including the right to be tried by a jury, to be assisted by an attorney at trial, to
confront and cross-examine witnesses, and not to be compelled to incriminate herself. (CR Doc.
No. 17 at 5). The Plea Agreement contains an express waiver of Petitioner’s right to contest her
conviction and sentence in post-conviction motions and on appeal except for claims of ineffective
assistance of counsel or prosecutorial misconduct. (CR Doc. No. 17 at 5-6). The Plea Agreement
provides that “[t]here are no agreements, representations, or understandings between the parties in
this case, other than those explicitly set forth in this Plea Agreement, or as noticed to the Court
during the plea colloquy and contained in writing in a separate document signed by all parties.”
(CR Doc. No. 17 at 8).
The Factual Basis that was filed along with the Plea Agreement provides in relevant part:
On June 10, 2017, Silver Elise JONES was driving a Dodge Charger when
law enforcement pulled her over on North Carolina Highway 16 in Catawba
County, in the Western District of North Carolina.
Law enforcement found JONES in possession of fifty (50) grams or more
of a mixture and substance containing a detectable amount of methamphetamine
(actual)…, and a quantity of a mixture and substance containing a detectable
amount of fentanyl….
JONES knew that both the methamphetamine (actual) and fentanyl she
possessed were controlled substances under the law at the time of the possession.
JONES possessed the methamphetamine (actual) and the fentanyl with the intent to
distribute the drugs.
Law enforcement found JONES in possession of a firearm…[,] a .45 caliber
handgun. The firearm had traveled in interstate or foreign commerce at some point
before law enforcement seized it.
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Before the recovery of this firearm, JONES was convicted of one or more
offenses punishable by a term of imprisonment in excess of one year and was
therefore prohibited from lawfully possessing a firearm.
In addition, from in or about March 2017 through in or about October 2017,
JONES willfully entered into an agreement with one or more people to distribute
and possess with intent to distribute five hundred (500) grams or more of a mixture
and substance containing a detectable amount of methamphetamine….
(CR Doc. No. 18 at 1-2) (paragraph numbers omitted).
On February 23, 2018, a United States Magistrate Judge conducted a plea hearing pursuant
to Rule 11 at which Petitioner was represented by counsel. (CR Doc. No. 20) (Acceptance).
Petitioner stated, under oath, that: she wanted the Court to accept her guilty plea; she understood
the charges, her sentencing exposure, and the consequences of pleading guilty; she understood the
rights she was waiving by pleading guilty; and she was pleading guilty because she is guilty of the
charged offenses. (CR Doc. No. 20 at 1-3). Petitioner further stated that she understood and agreed
with the Plea Agreement including the appellate and post-conviction waivers. (CR Doc. No. 20 at
3). She stated that she read the Factual Basis, understood it, and agreed with it. (Id.). Petitioner
stated that nobody threated, intimidated, or forced her to plead guilty, or made any promises of
leniency or a light sentence to induce her to plead guilty. (Id.). Petitioner confirmed that she had
enough time to discuss any possible defense with her attorney and was satisfied with counsel’s
services, stating “Excellent….” (Id.).
The Presentence Investigation Report (“PSR”) scored the base offense level as 36 pursuant
to § 2D1.1(a)(5) because the Petitioner was responsible for a marijuana equivalency of 30,000 to
90,000 kilograms of marijuana. (CR Doc. No. 30 at ¶ 32). Two levels were added because a
dangerous weapon, including a firearm, was possessed during the offense. (CR Doc. No. 30 at ¶
33). Petitioner provided a written statement to the Probation Officer admitting involvement in the
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offense stating: “I Silver Jones do admit that I did unlawfully possess and conspired to possess and
distribute meth, heroin, and fentanyl.” (CR Doc. No. 30 at ¶ 29). Three levels were deducted for
acceptance of responsibility, resulting in a total offense level of 35. (CR Doc. No. 30 at ¶¶ 48-50).
Petitioner had 14 criminal history points and a criminal history category of VI. (CR Doc. No. 30
at ¶ 77). The resulting advisory guideline range was 292 to 365 months’ imprisonment. (CR Doc.
No. 30 at ¶ 121).
The United States withdrew the § 851 Information and moved for a downward departure
to an offense level of 30, which the Court granted. See (CR Doc. No. 36) (Motion for Downward
Departure); (CR Doc. No. 43) (Amended Statement of Reasons). The revised advisory guideline
range was 168 to 210 months’ imprisonment. (CR Doc. No. 43 at 2). In a Judgment entered on
October 18, 2018, the Court sentenced Petitioner to 180 months’ imprisonment for Counts One
and Two, and 120 months’ imprisonment for Count Four, concurrent, followed by five years of
supervised release.1 (CR Doc. No. 38). Petitioner did not appeal. On January 8, 2020, the Court
reduced Petitioner’s sentence to an aggregate term of 120 months’ imprisonment on the
Government’s motion. (CR Doc. No. 50).
Petitioner filed the instant § 2255 Motion to Vacate on October 15, 2019.2 (Doc. No. 1).
She argues that counsel was ineffective for failing to: file a motion challenging the sufficiency of
the evidence; “argue or counter prosecutor on facts that were not true;” “explain [the] plea;”
challenge the criminal history points; and “explain the appeal process.” (Doc. No. 1 at 4-7).
The United States filed a Response (Doc. No. 3), arguing that Petitioner’s claims are

1

The case was assigned to Judge Richard L. Voorhees at that time.

2

Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prisoner mailbox rule); Rule 3(d), 28 U.S.C. foll. §
2255 (addressing inmate filings).

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conclusory, waived, and meritless. Petitioner did not reply.
II.

SECTION 2255 STANDARD OF REVIEW

A federal prisoner claiming that her “sentence was imposed in violation of the Constitution
or the laws of the United States, or that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the sentence to vacate, set aside or correct
the sentence.” 28 U.S.C. § 2255(a).
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, the Court finds that the arguments
presented by Petitioner 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.

DISCUSSION3

The Petitioner presently raises a number of claims of ineffective assistance of counsel. 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 her defense. See U.S. Const. Amend. VI. To show
ineffective assistance of counsel, a petitioner must first establish deficient performance by counsel
and, second, that the deficient performance prejudiced her. See Strickland v. Washington, 466 U.S.
668, 687-88 (1984). The deficiency prong turns on whether “counsel’s representation fell below
an objective standard of reasonableness ... under prevailing professional norms.” Id. at 688. A

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Petitioner’s claims have been restated and renumbered.

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reviewing court “must apply a ‘strong presumption’ that counsel's representation was within the
‘wide range’ of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104
(2011) (quoting Strickland, 466 U.S. at 689). The prejudice prong inquires into whether counsel’s
deficiency affected the judgment. See Strickland, 466 U.S. at 691. A petitioner must demonstrate
“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. A 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. Strickland, 466 U.S.
at 670.
(1)

Waiver
As a preliminary matter, a knowing and voluntary guilty plea waives any “independent

claims relating to the deprivation of constitutional rights that occurred prior to the entry of the
guilty plea.” Blackledge v. Perry, 417 U.S. 21, 29-30 (1974). A defendant who pleads guilty is
limited “to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the
advice received from counsel was not within the range of competence demanded of attorneys in
criminal cases.” Id.
Petitioner stated at the Rule 11 hearing that she understood the charges, her sentencing
exposure, and the rights she was relinquishing by pleading guilty including the appellate and postconviction waivers. See (CR Doc. No. 20). She stated that the guilty plea was freely and voluntarily
entered and was not the product of threats, coercion, or promises other than the terms of the Plea
Agreement. (Id.). She acknowledged that she was guilty of Counts One, Two, and Four, and agreed
that the Factual Basis was true and accurate. (CR Doc. Nos. 17, 20). She further agreed that she
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had discussed any possible defenses with counsel and was satisfied with counsel’s services. (CR
Doc. No. 20). The foregoing complies with Rule 11 and demonstrates that Petitioner’s guilty plea
was freely and voluntarily entered with a full understanding of its nature and consequences and
that the guilty plea was supported by an independent factual basis. See Fed. R. Crim. P. 11(b)(1)(3); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Petitioner’s knowing and voluntary guilty plea waived any allegations of ineffective
assistance of counsel that preceded it, including counsel’s alleged failure to challenge the
sufficiency of the evidence. To the extent that the Petitioner’s allegation that counsel failed to
“argue or counter the prosecutor on facts that were not true” refers to pre-plea conduct, this too is
waived.4 Therefore, the Petitioner’s allegations that counsel provided ineffective assistance before
she pleaded guilty, these claims are dismissed and denied.
(2)

Involuntary Plea
Liberally construing the pro se Petitioner’s arguments, she appears to allege that counsel

was ineffective for failing to adequately explain the plea.
The right to the assistance of counsel during criminal proceedings extends to the pleabargaining process. See Missouri v. Frye, 566 U.S. 134 (2012). Thus, criminal defendants are
“entitled to the effective assistance of competent counsel” during that process. Lafler v. Cooper,
566 U.S. 156, 162 (2012) (internal quotation marks omitted); Merzbacher v. Shearin, 706 F.3d
356, 363 (4th Cir. 2013). Where a defendant enters her plea upon the advice of counsel, the
voluntariness of the plea depends on whether counsel’s advice was “within the range of

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To the extent that this refers to conduct that allegedly occurred after the Petitioner pleaded guilty, it is too vague and
conclusory to support relief because Petitioner fails to explain how counsel was allegedly deficient or how such
deficiency prejudiced her. See United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (“vague and conclusory
allegations contained in a § 2255 petition may be disposed of without further investigation by the district court.”).

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competence demanded by attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56 (1985)
(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). To satisfy Strickland’s prejudice
prong, the defendant must show “there is a reasonable probability that, but for counsel’s errors,
[she] would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at
59; Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007).
Petitioner’s present contention that counsel did not adequately explain the plea is too vague
and conclusory to support relief. Petitioner does not explain how counsel’s advice about the plea
was deficient, nor does she assert that she would have proceeded to trial but for counsel’s allegedly
deficient performance. See Dyess, 730 F.3d at 359 (“vague and conclusory allegations contained
in a § 2255 petition may be disposed of without further investigation by the district court.”).
Moreover, this claim is conclusively refuted by the record. The Plea Agreement and
Petitioner’s statements under oath at the Rule 11 hearing reflect that the plea was knowingly and
voluntarily entered. See Section I, supra. Petitioner’s present self-serving and unsupported
suggestion that she did not understand the guilty plea and its consequences are contradicted by her
own sworn statements at the Rule 11 hearing and are rejected. See Blackledge v. Allison, 431
U.S. 63, 74 (1977) (“Solemn declarations in open court carry a strong presumption of verity. The
subsequent presentation of conclusory allegations unsupported by specifics is subject to summary
dismissal, as are contentions that in the face of the record are wholly incredible.”); see, e.g., United
States v. Lemaster, 403 F.3d 216, 221–22 (4th Cir. 2005) (§ 2255 petitioner’s sworn statements
during the plea colloquy conclusively established that his plea agreement and waiver were
knowing and voluntary).
Moreover, Petitioner is unable to demonstrate prejudice. The Plea Agreement was highly
beneficial to Petitioner in that it resulted in the dismissal of a serious § 924(c) charge and the §
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851 Information, a three-level deduction for acceptance of responsibility, and a downward
departure sentence. The decision to go to trial would not have been objectively reasonable in light
of the extremely favorable Plea Agreement and the strong evidence of Petitioner’s guilt, as
demonstrated by the Factual Basis. See United States v. Santiago, 632 F. App’x 769, 774 (4th Cir.
2015) (“when the Government’s case is strong,” a § 2255 petitioner “faces a nearly insurmountable
obstacle to showing that it would have been rational to go to trial.”); see, e.g., United States v.
Fugit, 703 F.3d 248, 259 (4th Cir. 2012) (finding that the decision to go to trial would not have
been objectively reasonable where the evidence of petitioner’s guilt was overwhelming).
The record reveals that Petitioner’s guilty plea was knowingly and voluntarily entered and
that no ineffective assistance of counsel occurred that rendered the plea involuntary. This claim is
therefore denied.
(3)

Sentencing
Petitioner contends that counsel performed deficiently with regards to sentencing by failing

to challenge her criminal history points.
When applying the Strickland prejudice test in the context of sentencing, “any amount of
actual jail time has Sixth Amendment significance.” Glover v. United States, 531 U.S. 198, 203
(4th Cir. 2001).
Petitioner’s claims that counsel provided ineffective assistance with regards to sentencing
is too vague and conclusory to support relief. Petitioner contends that her criminal history was
miscalculated, but she fails to identify any alleged error or explain how such prejudiced her in light
of the downward departure motion at the time of sentencing, and a subsequent sentence reduction
to an aggregate of 120 months’ imprisonment which is the minimum mandatory sentence allowed
by statute for Count One. See Dyess, 730 F.3d at 359; (CR Doc. No. 50). Accordingly, this claim
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will be dismissed and denied.
(4)

Direct Appeal
Finally, Petitioner contends that counsel “did not explain appeal process.” (Doc. No. 1 at

7).
Strickland applies in the context of appellate representation. Counsel must file a notice of
appeal when instructed by the client to do so. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).
Even if a client does not expressly request an appeal, “counsel has a constitutionally imposed duty
to consult with the defendant about an appeal when there is reason to think either (1) that a rational
defendant would want to appeal (for example, because there are nonfrivolous grounds to appeal),
or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in
appealing.” Id. at 480; United States v. Cooper, 617 F.3d 307 (4th Cir. 2010). Dereliction of either
of these duties constitutes deficient performance. See Flores-Ortega, 528 U.S. 477, 480; Cooper,
617 F.3d at 313. A defendant establishes prejudice by demonstrating a reasonable probability that
he would have filed an appeal “but for” counsel’s failure to file or consult. Flores-Ortega, 528 U.S.
484.
Petitioner does not allege that she directed her lawyer to file a direct appeal on her behalf
or that she expressed an interest in appealing. Therefore, the only question before the Court is
whether a rational defendant would have wanted to appeal such that counsel had a duty to consult
with Petitioner about appealing. The record reveals that no duty to consult arose in this case.
Petitioner’s highly beneficial Plea Agreement resulted in the dismissal of a serious § 924(c) charge
and the § 851 Information, a three-level reduction in the offense level for acceptance of
responsibility, and a downward departure sentence. Further, Petitioner’s Plea Agreement
contained a knowing and voluntary waiver of her appellate rights except for claims of ineffective
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assistance of counsel and prosecutorial misconduct. Petitioner has not set forth any reason that a
rational defendant would have wanted to appeal under these circumstances, such as the existence
of nonfrivolous grounds for appeal. Indeed, the only potential claims that Petitioner has identified
in the instant proceeding address the sufficiency of the evidence and the sentencing guideline
calculations, which are not nonfrivolous and would have been barred by the appellate waiver had
Petitioner attempted to raise them on direct appeal. Counsel was not ineffective for declining to
consult with Petitioner about appealing under these circumstances and, accordingly, this claim is
denied.
IV.

CONCLUSION

For the foregoing reasons, the § 2255 Motion to Vacate is dismissed with prejudice and
denied.
IT IS, THEREFORE, ORDERED that:
1.

Petitioner’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255, (Doc. No. 1), is DISMISSED with prejudice and 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).
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3.

The Clerk is instructed to close this case.

Signed: June 4, 2021

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