Terry v. United States of America
Filing
81
MEMORANDUM OPINION AND ORDER the Court OVERRULES Petitioner's 72 , 73 , and 77 objections, ADOPTS the 71 Proposed Findings and Recommendation, to the extent that it is consistent with this memorandum opinion and order, DENIES Petitioner 39;s 64 § 2255 Motion to Vacate, Set Aside or Correct Sentence, DENIES Petitioner's request for an evidentiary hearing, DISMISSES this case, and DIRECTS the Clerk to remove this action from the Court's docket. The Court DENIES a certificate of appealability. Signed by Judge Thomas E. Johnston on 9/30/2015. (cc: Judge, USA, USP, USM, counsel, deft) (skh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
RAHMAN TERRY,
Petitioner,
v.
CIVIL ACTION NO. 2:12-cv-01576
(Criminal No. 2:11-cr-00037)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending is Petitioner Rahman Terry’s motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 filed May 18, 2012. This action was referred to former United
States Magistrate Judge Mary E. Stanley for submission of proposed findings and a
recommendation for disposition (“PF&R”). Following Magistrate Judge Stanley’s retirement,
this action was transferred to United States Magistrate Judge Dwane L. Tinsley. On April 16,
2013, Magistrate Judge Tinsley submitted his PF&R recommending that this Court deny
Petitioner’s § 2255 motion and dismiss this action from the Court’s docket. Petitioner filed timely
objections to the PF&R on May 3, 2013. On August 16, 2013, Petitioner filed a motion to amend
his objections or, in the alternative, to amend his § 2255 motion to assert additional claims based
on a recently-issued Supreme Court decision. The Court granted that motion to the extent that it
requested leave to amend Petitioner’s objections to the PF&R.
I.
BACKGROUND
On April 11, 2011, Petitioner pleaded guilty to a single-count indictment charging him with
possessing with intent to distribute a quantity of heroin, in violation of 21 U.S.C. § 841(a)(1).
This guilty plea combined with his prior criminal history exposed Petitioner to the career offender
enhancement provided for by U.S. SENTENCING GUIDELINES MANUAL § 4B1.1 (2010).1 On July
20, 2011, this Court applied the career offender enhancement and sentenced Petitioner to a term
of 151 months imprisonment, followed by a three year term of supervised release. Petitioner
appealed the Court’s judgment and his counsel filed an appellate brief under the guidance of
Anders v. California, 386 U.S. 738 (1967). The Government moved to dismiss the appeal as
barred by the appellate waiver contained within Petitioner’s plea agreement. The Fourth Circuit
granted the Government’s motion and dismissed the appeal on February 15, 2012. The instant §
2255 motion followed.
II.
PF&R AND OBJECTIONS
Petitioner’s § 2255 motion asserts ineffective assistance of counsel as its sole ground for
relief. Petitioner contends that his counsel induced him to accept a non-favorable plea agreement
which resulted in a greater than expected sentence.2 As set forth in his § 2255 motion, Petitioner
1
The November 1, 2010, edition of the United States Sentencing Guidelines Manual and its Supplement were used
in Petitioner’s sentencing. See Presentence Report at 6, United States v. Terry, No. 2:11-cr-37 (S.D.W. Va. August
4, 2011), ECF 43. The guideline provisions pertinent here are substantively identical to those of the current
November 1, 2014, edition of the Guidelines Manual. See U.S. SENTENCING GUIDELINES MANUAL § 4B1.1 cmt.
historical note (2014) (noting that the only amendment to § 4B1.1 since 2002 occurred on November 1, 2011, pursuant
to Appendix C, amendment 758); U.S. SENTENCING GUIDELINES MANUAL app. C (2011) (noting that amendment 758
merely amended §4B1.1(b) “by redesignating (A) through (G) as (1) through (7)”).
2
In his form petition, (ECF 64), Petitioner asserts that as a result of the alleged ineffective assistance of counsel, his
guilty plea was “INVOLUNARY, UNKNOWING, AND UNINTELLIGENT.” The Court does not, even under the
liberality standard, read this as an additional attack on Petitioner’s guilty plea as being involuntary or unknowing.
The Court takes this approach for several reasons. First, Petitioner, throughout his pleadings, characterizes his claim
as one for ineffective assistance of counsel. Second, Petitioner never challenged his plea as involuntary or
unknowing, either before the District Court or on direct appeal. A habeas petitioner may not collaterally attack a
2
claims that prior to the negotiation of his plea agreement, the Government contemplated filing an
information pursuant to 21 U.S.C. § 851 (“§ 851 information”) to enhance his statutory maximum
sentence based on the fact of a prior controlled substance conviction. The Government agreed
not to file the § 851 information in exchange for Petitioner’s plea of guilty. Petitioner contends
that his counsel encouraged him to plead guilty, but, among other errors, did not inform him that
under the plea agreement he would be sentenced as a career offender. Petitioner appears to
believe that the career offender enhancement does not apply when the Government files a § 851
information, and that, therefore, the filing of a § 851 information would have resulted in a lighter
sentence than he received under the plea agreement. Based on this belief, Petitioner asserts that
due to ineffective assistance of counsel he was “deprived . . . [of] a favorable choice to plead
openly and induced to accept a nonfavorable plea that resulted in a sentence greater than the
sentence pursuant to an open plea.” (ECF 65 at 4−7.)
The Magistrate Judge rejects this argument, pointing out that the Court maintained the
discretion to apply the career offender enhancement regardless of whether the Government filed a
§ 851 information. Furthermore, since the § 851 information would have increased Petitioner’s
base offense level under the career offender guideline from a level 32 to a level 34, the Magistrate
conviction or sentence based upon errors that could have been, but were not raised on direct appeal unless he can show
“cause and actual prejudice resulting from the errors of which he complains” or that “a miscarriage of justice would
result from the refusal of the court to entertain the collateral attack.” United States v. Mikalajunas, 186 F.3d 490,
492–93 (4th Cir. 1999) (citations omitted). “Miscarriage of justice” can only be shown by clear and convincing
evidence of actual innocence. Id. at 493. Here, Petitioner does not assert his innocence. Moreover, “cause” for
purposes of overcoming a procedural default in this context must turn on something “external to the defense,” such as
a novel claim or ineffective assistance of counsel. Id. (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). As
described above, Petitioner alleges ineffective assistance but no other cause for, or prejudice from, not challenging the
voluntariness of his plea earlier. Thus, while Petitioner retains the ability to assert an ineffective assistance claim
based on an involuntary plea, he has waived the right to independently raise that claim. Finally, in his plea agreement,
Petitioner waived the right to file a collateral attack on any of these issues except ineffective assistance of counsel.
Plea Agreement at 4, United States v. Terry, Criminal No. 2:11-cr-37 (S.D. W. Va. August 4, 2011), ECF 30. For all
of these reasons, the Court will address Petitioner’s claim exclusively as an ineffective assistance of counsel claim.
3
Judge concludes that Petitioner benefited from the plea agreement and that his counsel’s assistance
was not ineffective. (ECF 71 at 6−7.)
In his objections to the PF&R, Petitioner again argues that his counsel rendered ineffective
assistance with respect to Petitioner’s acceptance of the plea agreement, and alleges that counsel
was ineffective in a number of specific ways, including by negotiating a plea agreement under
which Petitioner was exposed to being sentenced as a career offender and by informing him that
he would be assessed a criminal history category III and a sentencing range of 10 to 16 months
imprisonment under the plea agreement. (ECF 72.)
Petitioner’s motion to amend his objections to the PF&R raises an argument not presented
to the Magistrate Judge. Petitioner relies on Alleyne v. United States, 133 S. Ct. 2151 (2013), to
contend that the underlying facts serving as a basis for the career offender enhancement were
required to have been presented to a jury and proven beyond a reasonable doubt. (ECF 73.)
For the reasons explained below, the Court overrules both Petitioner’s original objections
and amended objections.
II.
STANDARD OF REVIEW
The Court is required to “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C). However, the Court is not required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings
or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150
(1985). In addition, this Court need not conduct a de novo review when a petitioner “makes
general and conclusory objections that do not direct the Court to a specific error in the magistrate’s
4
proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
III.
DISCUSSION
A. Original Objections
Petitioner objects to the PF&R by reiterating his argument that he was induced to enter a
non-favorable plea agreement due to ineffective assistance of counsel. The Court has construed
Petitioner’s pro se objections liberally and finds them to be without merit.
To establish ineffective assistance of counsel, Petitioner must show that (1) his attorney’s
performance was deficient, and (2) the deficient performance was prejudicial. Strickland v.
Washington, 466 U.S. 668, 685−86 (1984). To establish deficient performance, Petitioner “must
show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688.
To demonstrate prejudice, Petitioner must show a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
In Hill v. Lockhart, the Supreme Court held that in the context of guilty pleas, “[t]he . . .
‘prejudice’ requirement . . . focuses on whether counsel’s constitutionally ineffective performance
affected the outcome of the plea process.” 474 U.S. 52, 59 (1985). Generally, a petitioner must
demonstrate 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.” Id. at 59.
Here, however, Petitioner argues that with effective assistance he would have rejected the
plea agreement and made an “open plea,” that is, pleaded guilty without the benefit of a plea
5
agreement3—not that he would have insisted on going to trial.4
In Missouri v. Frye, the Supreme Court explained that although Hill “applies in the context
in which it arose,” it “does not, however, provide the sole means for demonstrating prejudice
arising from the deficient performance of counsel during plea negotiations.” 132 S. Ct. 1399,
1409−10 (2012).
Frye articulated a standard for establishing Strickland prejudice “where a plea offer has
lapsed or been rejected because of counsel’s deficient performance”, explaining:
[D]efendants must demonstrate a reasonable probability they would
have accepted the earlier plea offer had they been afforded effective
assistance of counsel. Defendants must also demonstrate a
reasonable probability the plea would have been entered without the
prosecution canceling it or the trial court refusing to accept it, if they
had the authority to exercise that discretion under state law. To
establish prejudice in this instance, it is necessary to show a
reasonable probability that the end result of the criminal process
would have been more favorable by reason of a plea to a lesser
charge or a sentence of less prison time.
Frye, 132 S. Ct. at 1409.
“Generally, an open plea is a guilty plea made without the benefit of a plea agreement with the government.” United
States v. Williams, 06-20047-01-CM, 2012 WL 6554424, at *3 (D. Kan. Dec. 14, 2012). See also Goolsby v. Sec’y,
Dep’t of Corr., 8:09-CV-2136-T-23TGW, 2012 WL 2384425, at *1 (M.D. Fla. June 25, 2012) (noting that defendant
“pleaded guilty without a plea agreement, commonly called an ‘open plea’”); Theus v. Tucker, 1:08CV42/MP/CJK,
2012 WL 7783575, at *16 (N.D. Fla. Oct. 31, 2012) report and recommendation adopted sub nom. Theus v. Buss,
1:08-CV-00042-MP-CJK, 2013 WL 1176073 (N.D. Fla. Mar. 20, 2013) (observing that “petitioner has not shown a
reasonable probability that he would have entered an open plea (i.e., pled ‘straight up’ to the judge as charged without
a plea agreement)”).
3
For instance, in Petitioner’s memorandum supporting his § 2255 motion he argues that “the deficient performance
giving rise to [his] ineffective assistance of counsel claim is where [counsel] deprived [Petitioner of] a favorable choice
to plead openly and induced him to accept a nonfavorable plea agreement that resulted in a sentence greater than the
sentence pursuant to an open plea.” (ECF 65 at 4.) Elsewhere in that memorandum, Petitioner asserts that instead
of advising him to accept the plea agreement, counsel “should have allowed the [G]overnment to file its [§ 851
information] and advised Petitioner to plea [sic] openly.” (ECF 65 at 7.) Similarly, in his objections to the PF&R,
Petitioner explains that he initially informed his counsel that he wanted to plead guilty but that trial counsel “advised
[Petitioner] it was not in [counsel’s] interest to let him plead openly because the Government was seeking [a § 851
information].” (ECF 72 at 2.) At no point in any of the filings in support of his § 2255 motion has Petitioner alleged
that but for counsel’s asserted errors he would not have pleaded guilty but instead would have gone to trial.
4
6
Although Frye is not directly on point to the situation presented here, the framework
articulated in Frye is much more analogous than Hill’s requirement that Petitioner demonstrate
that but for counsel’s errors there is a reasonable probability that he would have gone to trial. As
such, the Court concludes that under the unique circumstances Petitioner alleges here, the
Strickland inquiry into whether the result of the proceeding would have been different requires
looking not at whether Petitioner would have proceeded to trial, but rather examining whether he
would have made an open plea of guilty to the single-count indictment as he alleges. See United
States v. Cuellar-Chavez, 1:06-CR-60-TLS, 2013 WL 425886, *11 (N.D. Ind. Feb. 4, 2013)
(concluding that the standard for showing prejudice articulated in Frye applied, in an adapted form,
where the defendant argued that but for ineffective assistance of counsel he would have entered an
open plea rather than proceeding to trial).
In so concluding, and relying on Frye for guidance, the Court concludes that to establish
prejudice here Petitioner must demonstrate: (1) a reasonable probability that he would have
entered an open plea to the indictment absent ineffective assistance of counsel; (2) a reasonable
probability that the plea would have been entered without the Court refusing to accept it; and (3)
a reasonable probability that the end result would have been more favorable by reason of a sentence
of less prison time. See Frye, 132 S. Ct. at 1409−10.
“Surmounting Strickland’s high bar is never an easy task. Moreover, to obtain relief on
this type of claim, Petitioner must convince the [C]ourt that a decision to reject the plea bargain
would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 371–72
(2010) (citations omitted).
Petitioner’s claim of ineffective assistance of counsel is composed of several different
7
assertions of error by his counsel, but all principally relate to his argument that he was prejudiced
because counsel deprived him of a more favorable choice to plead openly by inducing him to
accept a non-favorable plea agreement that resulted in a sentence greater than what he would have
received pursuant to an open plea. (ECF 65 at 4−7.) Petitioner takes this position because he
appears to believe that, had the Government filed and proved a § 851 information, it would have
rendered inapplicable the career offender enhancement under U.S.S.G. § 4B1.1, resulting in a
lesser sentence of imprisonment. (ECF 65 at 6−7.) Petitioner is mistaken.
Section 851 and U.S.S.G. § 4B1.1 are separate provisions that operate independently of
one another. See generally United States v. Foster, 68 F.3d 86, 89 (4th Cir. 1995) (explaining
that the enhanced punishments to which § 851 refers are those provided by statute, and that the
requirements of § 851 do not apply to enhancements under the Sentencing Guidelines); United
States v. Melton, 7:08CR00017, 2009 WL 2390956, at *3 (W.D. Va. Aug. 4, 2009) (explaining
the difference between U.S.S.G. § 4B1.1 and § 851).
As the Magistrate Judge observes, had the Government filed and proven a § 851
information, Petitioner would have been subject to a statutory 30-year maximum sentence rather
than a 20-year maximum sentence. See 21 U.S.C. §§ 841(b)(1)(C) and 851. 5 Importantly,
however, Petitioner still would have been subject to being sentenced as a career offender under
U.S.S.G. § 4B1.1(a).6 Indeed, in such a scenario Petitioner would have been attributed a higher
5
Petitioner has not challenged the fact of any of his prior convictions, nor alleged that at least one of these was not a
prior conviction for a felony drug offense that had become final within the meaning of §§ 841(b)(1)(C) and 851.
Accordingly, there is no reason for the Court to presume that the Government could not have filed a § 851 information
that would have resulted in Petitioner being subject to the increased punishment as provided for in these statutory
provisions.
“A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a
6
8
Base Offense Level of 34 based on the increased maximum sentence of 30 years, instead of the
Base Offense Level of 32 that was attributed to Petitioner under the plea agreement. See U.S.S.G.
§ 4B1.1(b)(2); id. at cmt n.2 (providing that “in a case in which the statutory maximum term of
imprisonment under 21 U.S.C. § 841(b)(1)(C) is increased from twenty years to thirty years
because the defendant has one or more qualifying prior drug convictions, the ‘Offense Statutory
Maximum’ for that defendant for the purposes of [U.S.S.G. § 4B1.1] is thirty years and not twenty
years.”).
Accordingly, there is no reasonable probability that the end result would have been more
favorable to Petitioner by way of less prison time by pleading openly—indeed, it would almost
certainly have been less favorable.7 See Frye, 132 S. Ct. at 1409. Similarly, Petitioner has not
crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). A controlled substance offense means
“an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the
manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of a controlled
substance . . . with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). According
to the presentence investigation report, Petitioner’s criminal history included multiple convictions for prior controlled
substance offenses. See Presentence Report at 7–13, United States v. Terry, Criminal No. 2:11-cr-37 (S.D.W. Va.
August 4, 2011), ECF 43. Petitioner did not contest these prior convictions or the appropriateness of his designation
as a career offender in his objections to the presentence investigation report or at sentencing. See id. at 20–11;
Transcript of Sentencing Hearing at 3–4, United States v. Terry, Criminal No. 2:11-cr-37 (S.D.W. Va. August 29,
2011), ECF 53. Petitioner also does not now argue that he does not qualify as a career offender under U.S.S.G. §§
4B1.1(a) and 4B1.2(b). Nor does Petitioner argue that counsel was in some way ineffective for not contesting either
the Court’s finding that he was properly designated as a career offender or the facts underlying that finding.
7
The Court observes that its conclusion would be the same under the standard for demonstrating prejudice announced
in Hill, for at least two reasons. First, Petitioner has not made any allegation that but for allegedly ineffective counsel
he would have gone to trial. See Hill, 474 U.S. at 60 (rejecting petitioner’s claim of ineffective assistance of counsel
where petitioner failed to allege the kind of prejudice necessary to satisfy Strickland, specifically that petitioner did
not allege that had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty
and insisted on going to trial). Second, even assuming that Petitioner’s § 2255 motion and supporting filings could
somehow be understood to assert that absent counsel’s error he would have gone to trial, Petitioner simply cannot
demonstrate that there is a reasonable probability that he would have gone to trial. This is so because in light of the
evidence disclosed in the presentence investigation report it is a perfectly reasonable assumption he would have been
found guilty. See Presentence Report at 4–5, United States v. Terry, Criminal No. 2:11-cr-37 (S.D.W. Va. August 4,
2011), ECF 43; Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007) (explaining that determining whether there is a
reasonable probability that but for counsel’s errors the defendant would not have pleaded guilty and would have
instead insisted on going to trial “is an objective inquiry, and dependent on the likely outcome of a trial had the
defendant not pleaded guilty”). Indeed, the strength of this evidence, which included Petitioner being observed by
police officers after a traffic stop trying to conceal an object in his hand, throwing the object away when confronted,
9
shown that there is a reasonable probability that he would have entered an open plea to the
indictment absent the alleged ineffective assistance of counsel, see id., or that a decision to reject
the plea bargain and instead plead openly would have been rational under the circumstances, see
Padilla, 559 U.S. at 371–72.8
The Court also observes that Petitioner complains that by accepting the plea agreement he
gave up the majority of his appellate rights. (ECF 72 at 4.) Of course, by pleading openly he
would not have agreed to the appeal waivers in the plea agreement. Petitioner mentions this for
the first time in his objections to the PF&R. To the extent that this undeveloped and conclusory
assertion is made in an attempt to demonstrate prejudice suffered under the plea agreement the
Court rejects the objection. Petitioner cites no authority in support of his position, and his bare
assertion is insufficient to demonstrate any prejudice because there is no allegation or argument
that but for the appellate waiver the result of the proceeding would have been different. Indeed,
Petitioner does not allege that he had any meritorious grounds on which to appeal his conviction,
and his expressed desire to admit his guilt to the crime charged in the indictment by pleading
openly largely belies any such grounds. Nor does Petitioner assert any grounds upon which he
may have appealed following an open plea. Moreover, Petitioner has also not alleged any
and that object being found to contain packages of heroin, as well as testimony from another individual that she and
another woman obtained heroin from Petitioner on multiple occasions, likely contributed to Petitioner’s expressed
desire to plead guilty to the criminal conduct charged in the indictment. Finally, the Court observes that had Petitioner
gone to trial and been convicted, he may have been subjected to even greater penalties than under both the plea
agreement and an open plea. For example, the Government could still have filed a § 851 information and Petitioner
still could have been sentenced under the career offender provisions of U.S.S.G. § 4B1.1. Moreover, Petitioner would
likely have lost a reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Accordingly, Petitioner is
also unable to demonstrate that a decision to reject the plea bargain and proceed to trial would have been rational
under the circumstances. See Padilla, 559 U.S. at 371−72.
8
To the extent that Petitioner is also required to demonstrate that the Court would not have rejected his open plea, the
Court assumes without deciding that Petitioner could make such a showing. In light of the Court’s findings with
respect to the other relevant considerations for demonstrating Strickland prejudice in this context, however, such
assumption has no impact on Petitioner’s claim.
10
circumstances to support the conclusion that he placed particular importance on his appellate rights
in deciding whether to accept the plea agreement or plead openly. See Hill, 474 U.S. at 60. In
short, Petitioner’s mere mention of his appeal rights is unaccompanied by even an allegation that
he was prejudiced by his waiver of those rights. The Court will not speculate as to what prejudice
Petitioner might have alleged. Therefore, Petitioner has failed to meet his burden to demonstrate
prejudice relating to the waiver of his appeal rights.
Petitioner also appears to assert that due to misinformation that he received from counsel
his plea was not knowing and voluntary because it does not represent an informed choice. (ECF
72 at 5.) In support of this contention, Petitioner points to his assertion that counsel incorrectly
advised him that his possible sentencing range under the plea agreement was 10 to 16 months
imprisonment (ECF 72 at 2), and “assured him that the sentence would be assessed in a Criminal
History Category III” (ECF 72 at 3). The Court rejects this contention for two reasons.
First, Petitioner cannot demonstrate prejudice from any allegedly deficient performance
related to his plea because, as discussed above, Petitioner’s alternative proposed course of action—
an open plea to the charge—would almost certainly have resulted in a greater sentence, and not a
lesser sentence as he contends.
Second, Petitioner cannot demonstrate prejudice because any inaccurate predictions that
counsel may have made regarding Petitioner’s sentencing exposure were corrected by the colloquy
at his Rule 11 plea hearing. See United States v. Foster, 68 F.3d 86, 88 (4th Cir. 1995) (“[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
11
the court and defendant.”) (citation omitted). See also United States v. Lemaster, 403 F.3d 216,
221–22 (4th Cir. 2005) (explaining that “in the absence of extraordinary circumstances, the truth
of [Petitioner’s] sworn statements . . . during [his] [guilty plea] colloquy is conclusively
established”); United States v. Woodson, 422 F. App’x 295, 296−97 (4th Cir. 2011) (unpublished)
(rejecting petitioner’s claim that his guilty plea was involuntary because his counsel was
ineffective for failing to advise him of the applicability of the career offender provisions of the
Sentencing Guidelines because petitioner could not demonstrate prejudice where district court
clearly informed him during the Rule 11 colloquy of the maximum sentence to which he could be
subjected).
During Petitioner’s plea hearing, the Court advised Petitioner of the potential penalties
associated with his conviction, including the maximum term of imprisonment of 20 years,
Transcript of Sentencing Hearing at 16–17, United States v. Terry, Criminal No. 2:11-cr-37
(S.D.W. Va. August 29, 2011), ECF 52, as well as the other consequences of pleading guilty, id.
at 17−23. The Court also advised Petitioner that his sentence would be determined by the Court
pursuant to the federal sentencing guidelines and explained that a presentence report would be
prepared and utilized as part of this process.
Id. at 9, 17−19. Petitioner affirmed that he
understood the consequences of pleading guilty. Id. at 9, 17−23.
Further, at the request of the Court, the Assistant United States Attorney summarized the
plea agreement at the plea hearing, including stating that “[p]aragraph 3 relates to the maximum
potential penalty. Sets forth the maximum imprisonment period of 20 years . . . .” Id. at 6.
Following this summary, in response to an inquiry from the Court, Petitioner told the Court that
he understood and agreed with all of the terms and provisions of the plea agreement. (Id.)
12
Moreover, Petitioner signed the last page of the plea agreement, acknowledging that “I have read
and carefully discussed every part of [the plea agreement] with my attorney, [and] that I understand
the terms of this agreement . . . .” Plea Agreement at 6, United States v. Terry, Criminal No. 2:11cr-37 (S.D. W. Va. August 29, 2011), ECF 30.
At the plea hearing, the Court further asked Petitioner “Do you understand that no one
could know at this time the exact sentence which will be imposed?” (ECF 52 at 23.) The
Petitioner affirmed that he so understood, and also affirmed that no one had promised or predicted
the exact sentence that would be imposed. (Id.)
For these reasons, the Court OVERRULES Petitioner’s objections to the PF&R and
concludes that Petitioner’s claim of ineffective assistance of counsel lacks merit.
B. Amended Objection
In his amended objection, Petitioner asserts that the Supreme Court’s decision in Alleyne
v. United States has “Overruled All prior Orders, and Judgment in this case.” (ECF 73 at 2.)
Petitioner appears to believe that under Alleyne a jury and not the judge must make the
determination beyond a reasonable doubt that he had at least two predicate felony convictions
qualifying him as a career offender. Again, Petitioner is mistaken.
In Alleyne, the Supreme Court held that any fact that increases the mandatory minimum
penalty for an offense must be alleged in the indictment and proven beyond a reasonable doubt by
submission to a jury. 133 S. Ct. at 2160−63. Alleyne is an extension of Apprendi v. New Jersey,
530 U.S. 466 (2000), which requires any fact that increases the maximum penalty for an offense
to be proven by the jury rather than the judge. Under Alleyne and Apprendi, “[t]he touchstone for
determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact
13
constitutes an ‘element’ or ‘ingredient’ of the charged offense.” Alleyne, 133 S. Ct. at 2158
(Thomas, J., with three Justices concurring and one concurring in the result) (citing Apprendi, 530
U.S. at 483 n.10).
Petitioner assumes without argument that Alleyne applies here—that is, that the decision
applies retroactively to cases on collateral review. Alleyne establishes a new rule of criminal
procedure, and new rules generally do not apply retroactively to cases on collateral review. See
Teague v. Lane, 489 U.S. 288, 303 (1989). See also United States v. Sanders, 247 F.3d 139, 147
(4th Cir. 2001) (procedural rules include those which dictate the fact-finding procedure which must
be used to ensure a fair trial); Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013) (finding
that Alleyne establishes a new rule of constitutional law). Moreover, Apprendi is not retroactive
on collateral review, see Sanders, 247 F.3d at 146−51, and other courts to have considered the
question have uniformly found that Alleyne is not either, see Butterworth v. United States, 775
F.3d 459, 469 (1st Cir. 2015); United States v. Reyes, 755 F.3d 210, 212 (3d Cir. 2014); In re
Mazzio, 756 F;3d 487, 489–92 (6th Cir. 2014). The Court need not resolve the question of
Alleyne’s retroactivity, however, because its holding is inapplicable in Petitioner’s case.
Petitioner reads Alleyne to require the facts giving rise to the career offender enhancement
to have been alleged in the indictment and proven beyond a reasonable doubt. Contrary to
Petitioner’s contention, Alleyne’s holding applies only to those facts which increase the mandatory
minimum penalty for an offense. In this case, Petitioner’s guilty plea exposed him to a maximum
term of imprisonment of 20 years, but it did not expose him to any mandatory minimum term of
imprisonment. See 21 U.S.C. § 841(a)(1). Petitioner’s guilty plea also exposed him to a term of
supervised release of at least 3 years in the event that he was sentenced to a term of imprisonment.
14
See id. These terms of imprisonment and supervised release, however, were unaltered by the
application of the career offender enhancement under U.S.S.G. § 4B1.1.
Furthermore, the facts underlying the career offender enhancement do not qualify as
“elements” or “ingredients” of Petitioner’s offense. As the Eleventh Circuit explained:
Put in its best light, [the defendant’s] argument assumes that he was convicted of
the nonexistent offense of being a career offender with only one qualifying
predicate offense. But he wasn’t. As the indictment and the judgment in this case
show, [the defendant] was not charged with, nor was he convicted of, being a career
offender. A defendant who is convicted and then has the § 4B1.1 career offender
enhancement, or any other guidelines enhancement, applied in the calculation of
his sentence has not been convicted of being guilty of the enhancement. If
guidelines enhancements were crimes, they would have to be charged in the
indictment and proven to the jury beyond a reasonable doubt. See United States v.
Kenney, 391 Fed. Appx. 169, 172 n.2 (3d Cir. 2010) (unpublished) (“The career
offender enhancement is not a separate offense, however. If it were, its elements
would need to be proven to a jury beyond a reasonable doubt.”). [The defendant’s]
position turns on treating sentences as convictions, and an argument that depends
on calling a duck a donkey is not much of an argument.
Gilbert v. United States, 640 F.3d 1293, 1320 (11th Cir. 2011). Here, Petitioner was convicted of
possessing with intent to distribute a quantity of heroin. The essential elements of this crime are
(1) possession of a quantity of heroin, (2) knowledge of the possession, and (3) intent to distribute.
See United States v. Crockett, 813 F.2d 1310, 1316 (4th Cir. 1987). At no point were the facts
relating to Petitioner’s prior convictions necessary to prove the elements of this offense.
Finally, to the extent that Petitioner also contends that Alleyne requires that an indictment
charging a violation of 21 U.S.C. § 841(a)(1) must charge a particular drug amount as opposed to
an unspecified quantity as an element of the offense (see ECF 73 at 3), Petitioner is also mistaken.
Section 841(b)(1)(C), under which Petitioner was sentenced, is “the default sentencing provision
if there is no drug quantity found by the jury . . . .” United States v. Wilson, 13-4202, 2013 WL
6645470, at *2 (4th Cir. Dec. 18, 2013) (unpublished).
15
The application of this statutory
sentencing provision is unchanged by Alleyne.9
For these reasons, the Court OVERRULES Petitioner’s amended objections.
C. Evidentiary Hearing
Finally, Petitioner requests an evidentiary hearing. In § 2255 proceedings, “[u]nless the
motion and the files and records of the case conclusively show that the prisoner is entitled to no
relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings
of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). See generally United
States v. Mitchell, 484 F. App’x 744, 745 (4th Cir. 2012) (reciting standard). An evidentiary
hearing in open court is required when a movant presents a colorable Sixth Amendment claim
showing disputed facts beyond the record and a credibility determination is necessary in order to
resolve the issue. United States v. Witherspoon, 231 F.3d 923, 925–27 (4th Cir. 2000). See also
Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970). The decision as to whether an
evidentiary hearing is necessary is within the discretion of the district court. Conaway v. Polk,
453 F.3d 567, 582 (4th Cir. 2006).
Here, there are no disputed facts necessary to resolve the legal issues presented by
Petitioner’s § 2255 motion. Even accepting as true all of Petitioner’s assertions and assuming
such assertions amounted to ineffective assistance of counsel, Petitioner cannot demonstrate any
9
On April 8, 2014, Petitioner filed a notice of supplemental authorities in support of his motion. (ECF 77.) In that
notice, Petitioner asserts that Burrage v. United States, 134 S. Ct. 881 (2014) also supports his § 2255 motion.
However, like Alleyne, that case has little relevance to Petitioner’s present § 2255 motion. Burrage held that 21
U.S.C. § 841(b)(1)(C)’s “death results” enhancement, which increases a defendant’s minimum and maximum
sentences, is an element that must be submitted to the jury and found beyond a reasonable doubt. 134 S. Ct. at 887.
Petitioner’s sentence was not enhanced pursuant to § 841(b)(1)(C)’s “death results” enhancement. As discussed
above, Petitioner’s minimum and maximum sentences were unaltered by the application of the career offender
enhancement under U.S.S.G. § 4B1.1. Although Petitioner asserts that his minimum and maximum sentences were
in fact enhanced (see ECF 77 at 2), Petitioner appears to confuse his advisory guideline sentencing range (which was
enhanced by the application of U.S.S.G. § 4B1.1’s career offender enhancement) with his statutory minimum and
maximum sentences (which were not).
16
prejudice from having accepted the plea agreement rather than having pleaded openly to the
indictment. Because the pleadings, files, and records in the case conclusively show that Petitioner
is not entitled to relief on his § 2255 motion, the Court DENIES Petitioner’s request for an
evidentiary hearing.
17
IV.
CONCLUSION
For the foregoing reasons, the Court OVERRULES Petitioner’s objections, (ECF 72, 73,
and 77), ADOPTS the PF&R, (ECF 71), to the extent that it is consistent with this memorandum
opinion and order, DENIES Petitioner’s § 2255 motion, (ECF 64), DENIES Petitioner’s request
for an evidentiary hearing, DISMISSES this case, and DIRECTS the Clerk to remove this action
from the Court’s docket.
The Court has also considered whether to grant a certificate of appealability. See 28
U.S.C. § 2253(c). A certificate will be granted only if there is “a substantial showing of the denial
of a constitutional right.” Id. at § 2253(c)(2). The standard is satisfied only upon a showing that
reasonable jurists would find that any assessment of the constitutional claims by this Court is
debatable or wrong and that any dispositive procedural ruling is likewise debatable. Miller–El v.
Cockrell, 537 U.S. 322, 336−38 (2003); Slack v. McDaniel, 529 U.S. 437, 484 (2000); Rose v. Lee,
252 F.3d 676, 683−83 (4th Cir. 2001). The Court concludes that the governing standard is not
satisfied in this instance. Pursuant to Rule 11(a) of the Rules Governing Proceedings Under 28
U.S.C. § 2255, Petitioner may not appeal the Court’s denial of a certificate of appealability, but he
may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.
The Court thus DENIES a certificate of appealability.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
18
September 30, 2015
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