ROBERT J. CONRAD, Jr., District Judge.
1. Petitioner is shot during a drug deal while providing protection with a firearm.
On March 18, 2011, Charlotte-Mecklenburg Police Department officers responded to a shooting in a Wal-Mart parking lot in Charlotte, North Carolina. (Crim. Case No. 3:11-cr-336-RJC-1, Doc. No. 73 at 10: 1/7/13 Sentencing Hrg. Tr.; Doc. No. 46 at ¶ 4: PSR). The responding officers found Petitioner lying on the ground, shot in the neck, with a loaded Hi-point, 9-mm, semi-automatic pistol lying next to his body. (
When law-enforcement officers arrived at the scene, Petitioner acknowledged that he had shot back at the individual who robbed Adams, stating that he shot at him about seven times. (
2. On the advice of counsel, Petitioner pleads guilty to having been a felon-in-possession.
A federal grand jury charged Petitioner with a single count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). (Crim. Case No. 3:11-cr-336-RJC-1, Doc. No. 8: Indictment). Petitioner eventually retained private counsel, Melissa Owen, who met with Petitioner twice for several hours so Petitioner could review the discovery against him and who ultimately advised Petitioner to plead guilty.
When Petitioner was indicted, he had prior, state-court felony convictions for assault with a deadly weapon causing serious injury, possession with intent to sell or deliver cocaine, and conspiracy to traffic in cocaine, as well as a prior conviction in this Court for conspiracy to possess with intent to distribute crack cocaine. (Crim. Case No. 3:11-cr-336-RJC-1, Doc. No. 46 at pp. 7-9). In later explaining her decision to advise Petitioner to plead guilty to the felon-in-possession offense, counsel Owen noted that the discovery revealed that witnesses stated that Petitioner did, in fact, possess the firearm at issue and that Petitioner had provided two statements to the police that he possessed the firearm. (Civ. Doc. No. 1-2 at 53). Owen also explained that some witnesses reported that a drug transaction had taken place before the shooting and that Petitioner had been there to provide security for the transaction. (
Petitioner entered a straight-up plea of guilty to the felon-in-possession offense, and Magistrate Judge David Cayer conducted a colloquy in accordance with Federal Rule of Criminal Procedure 11. (
3. After Petitioner questions the circumstances of his guilty plea, this Court suspends the first sentencing hearing.
A probation officer prepared a PSR in advance of the sentencing hearing that calculated a total offense level of 25, including a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for possessing the firearm during the course of a drug-trafficking transaction. (
This Court, the Honorable Max O. Cogburn, Jr., presiding, convened the first sentencing hearing on October 26, 2012.
Although Petitioner questioned whether he had been able to review all of the discovery, he never suggested that he was not guilty, stating, "I ain't saying I'm not guilty." (
Before suspending the hearing, the Court explained that the Government had not "improper[ly]" threatened or intimidated Petitioner by agreeing to forego additional charges in exchange for his guilty plea. (
4. At the conclusion of the second sentencing hearing, this Court sentences Petitioner to a downward-variance sentence of 100 months in prison.
This Court convened a second sentencing hearing on January 7, 2013. At the beginning of the hearing, Petitioner affirmed that the answers that he gave during his Rule 11 colloquy were correct and that he was, in fact, guilty of the § 922(g) offense. (Crim. Case No. 3:11-cr-336-RJC-1, Doc. No. 73 at 3). Petitioner stipulated to the facts set forth in the offense conduct section of the PSR that met the elements of the offense, including that he possessed a gun on the day in question. (
In response to Petitioner's objection to the four-level enhancement based on his having possessed the firearm in connection with a drug-trafficking offense, the Government called ATF Special Agent Robert Bryson to testify to the facts establishing that this offense was in the course of a drug-trafficking transaction.
Petitioner's counsel cross-examined Agent Bryson to refute the "drug deal gone bad" scenario. Petitioner's counsel established that Agent Bryson had not personally interviewed Petitioner or Adams and instead was relying on other officers' reports. (
As counsel was cross-examining Agent Bryson about Petitioner's teenage daughter, counsel for the Government requested a moment to speak with Petitioner's counsel. (
Before arguing for a specific sentence, the Government noted that it would not move for the third-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(b), given Petitioner's litigious posture between entry of his guilty plea and the sentencing hearing, which included more than 15 filed motions and the fact that he repeatedly declined to accept responsibility for his criminal conduct. (
In response, Petitioner's counsel requested a downward-variance sentence of 100 months. (
Petitioner then spoke on his own behalf, again complaining that he was the only one charged as a result of the shooting incident. (
The Court sentenced Petitioner to 100 months of imprisonment. (
Petitioner appealed, arguing that trial counsel provided ineffective assistance of counsel in withdrawing Petitioner's objection to the four-level enhancement. The Fourth Circuit affirmed this Court's judgment, holding that Petitioner had "failed to demonstrate that ineffective assistance of counsel conclusively appears on the record."
Petitioner now seeks to have his conviction and sentence vacated and has submitted an affidavit in support of the numerous claims raised in his motion. The Government has filed a response to Petitioner's motion to vacate, addressing each of his claims. (Civ. Doc. No. 57). Moreover, since filing his original motion to vacate, Petitioner has filed numerous motions to amend and/or supplement, which the Court addresses below. Petitioner has also filed numerous, other pending motions in this matter, and the Court addresses each of them separately as well.
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, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law.
A. Pending Motions
Before addressing Petitioner's claims in support of his motion to vacate, this Court will first address the following motions currently pending in this matter: (1) Petitioner's Motion for Access to Sealed Court Records (Doc. No. 35), (2) Petitioner's Motion for Bond (Doc. No. 42); (3) Petitioner's Motion for Status Report Hearing (Doc. No. 68); (4) Petitioner's Motion for Leave to Expand the Record Pursuant to Rule 7 of the Rules Governing Section 2255 (Doc. No. 71); (5) Petitioner's Motion for Leave to Supplement Previously Filed 2255 (Doc. No. 73); (6) Petitioner's Motion re: Motion to Vacate/Set Aside/Correct Sentence (Doc. No. 74); (7) Petitioner's Motion to Appoint Counsel (Doc. No. 78); (8) Motion to Withdraw as Attorney by Federal Defender (Doc. No. 80); (9) Petitioner's Motion to Withdraw Counsel and Proceed Pro Se (Doc. No. 81); (10) Petitioner's Supplement Newly Amended Supplement to Motion to Vacate (Doc. No. 82); (11) Petitioner's Motion for Status Report or Hearing re Motion to Vacate/Set Aside/Correct Sentence (Doc. No. 85); and (12) Petitioner's Motion for Leave To Supplement and/or Amend (Doc. No. 89).
1. Petitioner's Motion for Access to Sealed Court Records (Doc. No. 35)
First, as to Petitioner's Motion for Access to Sealed Court Records, (Doc. No. 35), Petitioner requests that, among other things, that this Court unseal and grant Petitioner access to: "all Pen Register Programs, Trap and Trace Programs, Caller ID, Deluxe Caller ID, "Fraudbuster" Reports, Pen Links, Wiretap Affidavits, Wiretap Applications and other seal[ed] records maintained by the United States Clerk that pertained to Petitioner filed with the Court from 2009 until the present seeking approval for U.S. Marshal Service's deployment of interception of private communications" and "all orders grant or denying such applications." (Doc. No. 35 at 13-14). Petitioner seeks, alternatively, that the Court unseal and grant Petitioner access to all orders granting or denying such applications, and that the Court order the Clerk to provide Petitioner with a list of all the applications for the period of 2009 to the present, including the docket numbers, and that the Court order the Clerk to give Petitioner access to any search warrant applications and return of search warrants relating to Petitioner from 2009 to the present. (Doc. No. 35 at 14). Petitioner argues "the U.S. Marshal Service since 2009 illegally seized by federal agents non-criminal private communications in violation of Petitioner[s] First, Fourth, Fifth, Sixth and Fourteenth Amendment rights . . . during a subsequent to illegal wiretaps of Petitioner's telephone communications." (
Petitioner's motion is denied, as he is not entitled to access to the sealed and confidential records that he seeks in his motion. Petitioner asserts nothing more than conclusory arguments that the documents at issue violated his Fourth Amendment or other constitutional rights, nor has he demonstrated that he has the right to access to these documents. Furthermore, by pleading guilty Petitioner waived all defenses and non-jurisdictional defects, including Petitioner's contention that the aforementioned searches violated his Fourth Amendment and other constitutional rights.
In sum, for these reasons, Petitioner's motion for access to sealed court records is denied.
2. Petitioner's Motion for Bond (Doc. No. 42)
Next, as to Petitioner's Motion for Bond, Petitioner seeks "release from custody pending final resolution of his motion to vacate. . . ." (Doc. No. 42 at 1). Petitioner's motion for bond is denied.
3. Petitioner's Motion to Appoint Counsel (Doc. No. 78); Motion to Withdraw as Attorney by Federal Defender (Doc. No. 80); Petitioner's Motion to Withdraw Counsel and Proceed Pro Se (Doc. No. 81)
Next, as to the Motion to Withdraw as Attorney by Federal Defender Joshua Carpenter, (Doc. No. 80), who was appointed by this Court pursuant to a Standing Order to inquire into whether Petitioner had a claim under
4. Petitioner's Motion for Leave to Expand the Record Pursuant to Rule 7 of the Rules Governing Section 2255 (Doc. No. 71), Petitioner's Motion for Leave to Supplement Previously Filed 2255 (Doc. No. 73), Petitioner's Motion for Leave to Expand the Record Pursuant to Rule 7 (Doc. No. 74), Petitioner's Supplement Newly Amended
Supplement to Motion to Vacate (Doc. No. 82), and Petitioner's Motion for Leave to Supplement and/or Amend (Doc. No. 89).
Next, the Court considers Petitioner's Motion for Leave to Expand the Record Pursuant to Rule 7 of the Rules Governing Section 2255 (Doc. No. 71), Petitioner's Motion for Leave to Supplement Previously filed 2255 (Doc. No. 73), Petitioner's Motion for Leave to Expand the Record Pursuant to Rule 7 (Doc. No. 74), Petitioner's Supplement Newly Amended Supplement to Motion to Vacate (Doc. No. 82), and Petitioner's Motion for Leave To Supplement and/or Amend (Doc. No. 89).
First, as to Petitioner's Motion for Leave to Expand the Record Pursuant to Rule 7 of the Rules Governing Section 2255 (Doc. No. 71), filed on March 31, 2016, Petitioner seeks to expand the record to include transcript pleas for several prior convictions in state court to support his contention that he is entitled to relief under
Next, as for Petitioner's Motion for Leave to Supplement Previously filed 2255 (Doc. No. 73), Petitioner seeks to supplement his motion to vacate to add a claim under
Similarly, as to Petitioner's Motion for Leave to Expand the Record Pursuant to Rule 7 (Doc. No. 74), filed on July 12, 2016, Petitioner expounds on his
Petitioner's additional claim is denied. Petitioner is essentially seeking to amend his motion to vacate to add new, substantive claims (aside from his timely
Here, Petitioner's proposed amended arguments as to his prior state court convictions, and the application of U.S.S.G. § 2K2.1(a)(2) do not arise out of the "same core facts" as asserted in his original petition. Therefore, the motion to amend the petition to add these new substantive claims is denied. In any event, Petitioner is not entitled to relief on these claims, as the Fourth Circuit Court of Appeals has held that mere errors in guidelines calculations are generally not cognizable in a Section 2255 proceeding.
Next, as to Petitioner's Supplement Newly Amended Supplement to Motion to Vacate (Doc. No. 82), filed on September 19, 2016, Petitioner states that he is submitting "two additional arguments" to his prior supplement to his motion to vacate. Petitioner's Supplement Newly Amended Supplement to Motion to Vacate (Doc. No. 82), is denied for the same reason as his other motions to amend or supplement are denied because he merely asserts the same arguments regarding application of U.S.S.G. § 2K2.1(a)(2) to obtain a base offense level of 24. He also appears to raise an additional argument that his criminal history points were incorrectly calculated. As the Court has already noted, Petitioner's arguments are simply not cognizable in this Section 2255 proceeding because, even assuming guidelines error in this matter, the error did not result in a miscarriage of justice.
Next, as to Petitioner's Motion for Leave to Supplement and/or Amend (Doc. No. 89), filed on July 6, 2017, Petitioner seeks to amend the motion to vacate to add a claim under the Supreme Court's recent decision in
5. Petitioner's Motion for Status Report Hearing (Doc. No. 68), Petitioner's Motion for Status Report (Doc. No. 85)
Next, as for Petitioner's Motion for Status Report (Doc. No. 85), the motion is granted to the extent that the Court is now ruling on the pending motion to vacate. Furthermore, as to Petitioner's Motion for Status Report Hearing (Doc. No. 68), the motion is denied as moot.
B. Petitioner's Claims of Ineffective Assistance of Counsel
The Court next addresses Petitioner's 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 his defense.
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."
1. Counsel's withdrawal of the objection to enhancement for possession of a firearm in connection with another felony offense. Petitioner first argues that trial counsel Owen rendered constitutionally deficient representation by withdrawing Petitioner's objection to the four-level enhancement based on Petitioner's having possessed a firearm in connection with another felony offense—specifically, a drug transaction for which Petitioner was providing "security." Section 2K2.1(b)(6)(B) of the sentencing guidelines provides for a four-level enhancement "if the firearm . . . facilitated, or had the potential of facilitating, another felony offense." U.S.S.G. § 2K2.1(b)(6)(B) cmt. n.14(A). Although the record does not contain a transcript of the sidebar conference that preceded the withdrawal of Petitioner's objection, Petitioner cannot show either that counsel Owen provided deficient representation in deciding to withdraw that objection or that there is a reasonable probability that this Court would have sustained the objection if she had not withdrawn it.
First, Petitioner cannot show that counsel provided deficient representation in withdrawing the objection, because there is no evidence on the record that the objection was well founded. Agent Bryson provided competent testimony of the law-enforcement investigation into the shooting, which included the investigators' conclusion that the shooting occurred during a drug transaction involving Petitioner. Agent Bryson testified regarding Adams' statement describing the incident, as well as to Petitioner's admission that he had shot at the buyers of the crack cocaine approximately seven times. While Petitioner points to trial counsel's cross-examination of Agent Bryson as proof that his testimony was not credible, nothing Agent Bryson acknowledged on cross-examination undermined his earlier testimony that Adams provided a statement placing Petitioner as a participant at the scene of the drug transaction. Additionally, although Petitioner asserts in his affidavit that Adams recanted his statement that Petitioner was providing security for a drug transaction, he has not provided any competent evidence supporting that self-serving assertion. Because the record contains no evidence, other than Petitioner's own conclusory assertions, that Petitioner did not possess the firearm in connection with a drug transaction and because there is evidence in the record clearly supporting the enhancement, Petitioner has not shown that counsel improperly withdrew the objection to the enhancement.
Even if Petitioner could show that counsel improperly withdrew the objection, he cannot show prejudice. As this Court (the Honorable Max O. Cogburn, Jr., presiding) stated during the second sentencing hearing, based on the evidence presented to support the enhancement, it was "pretty clear [Petitioner] got shot because he showed up at a drug deal with a gun," and that Petitioner was shot because he "was a criminal involved with guns and drugs." (Crim. Case No. 3:11-cr-336-RJC-1, Doc. No. 73 at 23). Based on these comments, Petitioner cannot show a reasonable probability that, even if counsel had not withdrawn his objection to the enhancement, this Court would have sustained the objection. To the contrary, these statements make clear that this Court was inclined to overrule the objection.
2. Counsel's failure to investigate and file pre-trial motions.
Petitioner next argues that counsel improperly failed to investigate the conditions under which he provided his recorded confession to law enforcement. Specifically, Petitioner asserts that had counsel investigated, she would have discovered that Petitioner was taking medication and that his confession was given without adequate Miranda warnings. Aside from attaching copies of prescription labels from several months after the March 2011 shooting, Petitioner has submitted no evidence supporting his assertion that his confession was given without Miranda warnings or under duress. Additionally, Agent Bryson testified that Petitioner gave a statement at the scene of the shooting admitting that the firearm was his and that he had fired approximately seven shots during the shooting incident. As there is no suggestion that Petitioner was in custody at the time this statement was provided, Miranda warnings would not have been required.
Petitioner also asserts that counsel improperly failed to investigate the authenticity of the recordings provided in discovery, suggesting that counsel should have advised him that he could move to suppress the recordings based on a lack of evidence authenticating them. As with his assertion that counsel improperly failed to investigate the circumstances of his confession, however, Petitioner has not presented any evidence suggesting that the evidence the Government provided to counsel in discovery was in any way inaccurate or inauthentic. Petitioner's assertion that there is reason to doubt the authenticity of the discovery is entirely speculative and cannot support a claim for relief.
Next, Petitioner asserts that counsel should have investigated the jail calls between Adams and Petitioner, because in one of those telephone calls Adams recanted his statement that Petitioner was at the drug transaction for protection. Specifically, Petitioner states in his affidavit that he had been informed, before he pleaded guilty, that Adams had recanted his statement that Petitioner was at the parking lot in order to provide security for a drug transaction and that this conversation was recorded at the Mecklenburg County Jail. (Civ. Doc. No. 1-2 at ¶ 3: Ex. A attached to Pet. Mot. to Vacate). Petitioner asserts that he informed counsel about this call and suggests that because counsel did not present a recording of the call during the sentencing hearing, she must have failed to investigate this claim. The fact that counsel did not present a recording of a jail call during Petitioner's sentencing hearing, however, does not demonstrate that counsel failed to investigate the existence of a recording. Additionally, even if Petitioner could show that counsel should have investigated this phone call and failed to do so, he has not demonstrated that even if Adams recanted his earlier statement, this Court would have declined to apply the enhancement, particularly where Adams' statement was corroborated by the investigation of the scene of the shooting and where Petitioner admitted to having exchanged gunfire with the individual who shot him. Considering Agent Bryson's testimony summarizing the strength of the Government's proof that Petitioner was present at the drug transaction, carried a gun to the transaction, and used a gun when the transaction turned into a robbery, Petitioner cannot show a reasonable probability that this Court would have declined to apply the enhancement, even if counsel had investigated the existence of the alleged jail call between Petitioner and Adams.
Next, Petitioner's claim that counsel improperly failed to investigate a two-hour break in the recording of Adams' interview suffers from the same lack of proof. Although counsel's questions of Agent Bryson reflect that she knew the agents took a two-hour break in their questioning of Adams, it is not clear from the record that counsel had any reason to believe that there was a recording of whatever occurred in the interview room during that two hours. Even if Petitioner could show that the recording exists and that counsel failed to investigate that possibility, however, he cannot establish the prejudice necessary to prove a claim of ineffective assistance of counsel, because there is no evidence that there actually is a recording of that time period or that anything helpful is on that recording, if there is one.
3. Counsel's alleged failure to give Petitioner correct advice on the consequences of pleading guilty and his likely sentence.
Petitioner next asserts that counsel incorrectly advised him that he was an armed career criminal and failed to advise him about how the Sentencing Guidelines would affect his sentence. Petitioner asserts that had he known "for sure that he was not an armed career criminal, it is likely he would have renegotiated a plea offer agreement at the initial phase of the case, without the ACCA enhancement." (Doc. No. 1-2 at 37).
This claim fails, first, because there is no evidence in the record that Petitioner was ever misadvised as to his status as an armed career criminal. In her June 12, 2012, letter to Petitioner, counsel discusses both the armed-career-criminal enhancement and the career-offender enhancement, noting that she had successfully challenged Petitioner's qualification for the armed-career-criminal enhancement. (Civ. Doc. No. 1-2 at 53-54). With respect to the career-offender enhancement, counsel notes in her letter to Petitioner that before he decided to plead guilty, she advised Petitioner that if he did not plead guilty to the felon-in-possession offense and the Government sought an indictment on additional drug-trafficking charges, he would qualify as a career offender, "subjecting [him] to far higher penalties" than the penalties he faced at that time. (
Second, Petitioner has not shown prejudice. While Petitioner suggests that had he known that he was not an armed career criminal, he would have likely been able to negotiate a more advantageous plea agreement, there is no evidence in the record that any plea agreement was ever extended to Petitioner, much less any evidence that he could have negotiated a better plea agreement had he known he was not an armed career criminal. The implication from counsel's letter to Petitioner is that the Government was not inclined to offer Petitioner
4. Counsel's failure to investigate Project Safe Neighborhood.
Petitioner next asserts that counsel failed to investigate whether state authorities "handed over" his case for federal prosecution, asserting that had counsel conducted an adequate investigation, she would have advised Petitioner to enter a plea of guilty to a felon-in-possession charge in state court. This claim fails because there is no evidence that counsel represented Petitioner for purposes of any state prosecution, that there was any opportunity for Petitioner to plead to a state offense, or that any action on the part of counsel would have resulted in such an opportunity. Petitioner's motion, therefore, fails for lack of proof of either deficient representation or prejudice.
5. Counsel's failure to investigate the validity of Petitioner's prior convictions.
Petitioner next asserts that counsel improperly failed to investigate the validity of his prior, North Carolina state-court convictions and to file a motion for appropriate relief in the North Carolina state court to vacate those convictions. As Petitioner acknowledges, however, counsel did research his prior convictions, and she successfully advocated against his classification as an armed career criminal. Although Petitioner asserts that counsel should have filed a motion for appropriate relief in state court, counsel's representation of Petitioner for purposes of this federal prosecution did not authorize or require that she file an action in state court seeking to have Petitioner's prior convictions vacated. Additionally, Petitioner has not presented any evidence supporting his assertion that any of his prior convictions was invalid or that there is no reasonable probability that a motion for appropriate relief would have been granted and granted before this Court sentenced Petitioner.
With respect to Petitioner's September 28, 1994, guilty plea in the Superior Court of Cabarrus County, North Carolina, the plea transcript in that action establishes that Petitioner was, in fact, advised of the maximum penalty he faced as to each of the offenses to which he was pleading guilty. (Civ. Doc. No. 15 at 9-15, Plea Tr. #1, attached to Pet. Second Suppl. to Mot. to Vacate; Doc. No. 15 at 19-25, Plea Tr. #2 attached to Pet. Second Suppl. to Mot. to Vacate). Finally, given this Court's decision to vary downward and its statement during Petitioner's sentencing hearing that the Court was imposing the sentence this Court deemed to be the right sentence based on Petitioner's crime and the 18 U.S.C. § 3553(a) sentencing factors, there is no reasonable probability that Petitioner would have received a sentence lower than 100 months, even if one or both of the prior convictions he now challenges were vacated by the state court. Petitioner has failed, therefore, to show either deficient representation or prejudice.
6. Appellate counsel's failure to raise various claims on appeal.
In his final claim of ineffective assistance of counsel, Petitioner asserts that appellate counsel provided constitutionally deficient representation in failing to present particular arguments on appeal, including arguments claiming vindictive prosecution, prosecutorial misconduct, and a violation of
To show prejudice in the context of appellate representation, "a petitioner must establish a reasonable probability . . . he would have prevailed on his appeal but for his counsel's unreasonable failure to raise an issue."
Petitioner's claim that appellate counsel should have raised a claim under the Supreme Court's decision in
Addressing Petitioner's arguments that appellate counsel should have challenged this Court's failure to adjudicate counsel Owen's motion to withdraw as counsel, this Court denied that motion as moot on February 1, 2013, because counsel withdrew the motion at Petitioner's sentencing hearing.
Likewise, there is no reasonable probability that a claim of a conflict of interest could have succeeded on appeal. There is no conflict of interest apparent on the face of the record, and counsel Owen's letter to Petitioner addressing his claims of ineffective assistance, attached to Petitioner's motion as Exhibit I, makes clear that she was working for Petitioner, not the Government, and doing her best to obtain the best result possible for him.
Finally, there is also no evidence in the record that Petitioner suffered from any mental impairment that would have supported a claim that counsel Owen should have investigated his mental state. Petitioner has submitted only evidence of two prescription drugs he was taking at some point, but there is no evidence that these drugs impaired his ability to assist in his defense or that he was not able to understand the proceedings against him. To the contrary, the many letters he wrote to this Court and his oral advocacy make clear that he was capable of assisting in his defense and that he understood the proceedings.
C. Petitioner's additional claims raised in his original motion to vacate.
In addition to arguing ineffective assistance of counsel, Petitioner also asserts, in his original motion to vacate, that the Government engaged in vindictive conduct, causing his plea to be unknowing and involuntary; that the Government withheld evidence of a two-hour recording from the Charlotte-Mecklenburg Police Department comprising the break in the interview of Adams, in violation of
First, each of these claims is procedurally defaulted, because Petitioner did not challenge his guilty plea as unknowing or involuntary, assert a claim of vindictive prosecution, assert a
Here, Petitioner has not established cause external to his defense for failing to assert these claims earlier. Even if Petitioner could show cause for failing to assert a claim of vindictive prosecution, he cannot show prejudice. First, Petitioner cannot show that he was prejudiced by his failure to assert a claim of vindictive prosecution based on the Government's "threat" to seek a superseding indictment if he declined to plead guilty to the § 922 offense, because the Supreme Court has made clear that a prosecutor's attempt to induce a guilty plea by asserting that if the defendant does not plead guilty, the prosecutor will seek an indictment on more serious charges does not violate a defendant's right to due process.
D. Petitioner's claims raised in his "Supplemental Memorandum" filed on June 30, 2015 (Doc. No. 59).
Finally, four days after the Government filed its response to Petitioner's motion to vacate and his earlier supplements, Petitioner filed, without authorization, a fifth supplement to his motion. The Government filed a response addressing each of these claims on August 30, 2015.
Petitioner first asserts that this Court failed to adhere to its discovery order, but he does not specify in what way this Court failed to do so. This claim is procedurally defaulted, and Petitioner has not asserted cause or shown that any decision this Court made with respect to his discovery prejudiced him. Additionally, as discussed above, this Court continued Petitioner's first sentencing hearing to ensure that he had the opportunity to review the discovery against him, notwithstanding trial counsel's statement to the Court that Petitioner had reviewed the discovery in its entirety. At no time during Petitioner's second sentencing hearing did he assert that he had not been permitted to review the discovery. This contention is without merit.
Petitioner next asserts that the Government withheld 74 pages "of records from the Bureau of Alcohol, Tobacco, Firearms and Explosives." (Civ. Doc. No. 59 at 16). Petitioner appears to support this assertion by comparing an excerpt from trial counsel's billing records that reflect that she reviewed 500 pages of discovery with a Freedom of Information Act ("FOIA") response, noting that the Government had 574 pages of records relating to Petitioner. (
Petitioner next asserts that the Government withheld the fact that a gunshot residue analysis was inconclusive, asserting that he would not have pleaded guilty had he known that this test was conducted because it supports his claim of innocence. Petitioner's contention is without merit. First, the report itself makes clear that blood was covering both of Petitioner's hands and that the technician was unable to "do" his right palm due to injury. (Civ. No. 59-2 at 48: Ex. 4, Attached to Fifth Supp. to Mot. to Vacate). Therefore, the evidence is not exculpatory as Petitioner contends. In any event, as the Court has already discussed thoroughly, Petitioner expressly admitted that he was holding the firearm, as he acknowledged having shot a gun "[p]robably seven" times. (
Petitioner next asserts that he was not provided with all of the statements made by his daughter, Camille, to investigation officers, claiming that he was given only one of those statements but that there were, in fact, other statements. Petitioner has not presented competent evidence that any evidence was withheld from him, however, including any statements made by his daughter.
Petitioner next asserts that the Government suppressed evidence that Adams bribed investigating officers into not charging him and charging Petitioner, instead, with a crime related to the shooting. Petitioner has not presented any evidence supporting this conclusory assertion. Petitioner attached various single-page transcript excerpts to support this claim. However, it is not clear who is being interviewed in these transcript excerpts. To the extent that the person interviewed is Adams, as alleged, the context belies any suggestion that the officers were offering to give Adams money or to accept money from Adams so he could escape criminal liability. Moreover, aside from Petitioner's conclusory assertion, there is no evidence that the Government suppressed any of these documents.
Petitioner's remaining claims of misconduct in his supplement also fail for lack of proof, as does his claim that trial counsel did not adequately prepare for sentencing or for a potential trial. In short, Petitioner admitted that he possessed the gun, his trial counsel secured for him a reasonable sentence and effectively argued against the imposition of a 15-year mandatory minimum in the process, and this Court made clear that the sentence imposed was the appropriate sentence notwithstanding any particular offense-level enhancement. Indeed, the Court even granted a downward variance, resulting in a sentence much lower than Petitioner could have received, given the Government's evidence against him.
For the foregoing reasons, the Court denies and dismisses Petitioner's § 2255 petition.