Opinion
7:18-CR-179-1FL 7:20-CV-49-FL
02-10-2022
MEGAN ELIZABETH BARDEEN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Petitioner's motion to vacate pursuant to 28 U.S.C. § 2255. The Government has moved to dismiss for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6), and Petitioner has responded. This matter has been referred to the undersigned by United States District Judge Louise W. Flanagan for memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rules 8(b) and 10 of the Rules Governing Section 2255 Proceedings. For the reasons stated herein, it is recommended that the Government's motion be granted and Petitioner's motion to vacate be dismissed.
BACKGROUND
On November 1, 2018, Petitioner was charged in a single-count criminal information with conspiracy to possess with the intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(b)(1)(A). (Criminal Information [DE #1].) On December 13, 2018, Petitioner pleaded guilty, pursuant to a written plea agreement, to the sole count of the criminal information. (Minute Entry dated Dec. 13, 2018 [DE #8].)
Before sentencing, Petitioner filed written objections to the draft Presentence Report (PSR). (PSR Objs. [DE #17].) Petitioner objected to (i) application of U.S.S.G. § 2D1.1(b)(2) on the ground that the BB gun possessed by her co-conspirator was not a firearm; (ii) application of U.S.S.G. § 4A1.1(d), which assesses two additional criminal history points if a defendant committed the instant offense while serving another sentence, on the ground that Petitioner was not on state probation at the time the instant offense commenced. Petitioner further argued that the foregoing objections, if sustained, would render Petitioner eligible for “safety valve relief.” (Id.)During the sentencing hearing on March 26, 2019, Petitioner, through counsel, withdrew the objections in response to the Government's decision to file a substantial assistance motion. (Audio of Mar. 26, 2019, sentencing hearing at 2:32-33 p.m.) The court sentenced Petitioner to 100 months' imprisonment. (J. [DE #29].) Petitioner did not appeal.
Petitioner did not specifically invoke U.S.S.G. § 5C1.2, although it is clear from the U.S. Probation Office's response that this is the referenced guidelines provision. (PSR [DE #18] at 15 ¶ 3.)
On March 17, 2020, Petitioner filed the instant § 2255 motion and supporting memorandum. (Mot. Vacate [DE #50]; Mem. Supp. Mot. Vacate [DE #50-1].) On April 27, 2020, the Government moved to dismiss for failure to state a claim. (Gov't Mot. Dismiss [DE #56]; Gov't Mem. Supp. Mot. Dismiss [DE #57].) Petitioner responded in opposition to the Government's motion on May 18, 2020. (Pet'r Resp. Opp'n [DE #60].)
DISCUSSION
There are four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence exceeds the statutory maximum sentence, and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; Hill v. United States, 368 U.S. 424, 426-27 (1962). Petitioner must establish her § 2255 claims by a preponderance of the evidence. See Loc Huu Bui v. United States, Nos. 5:10-CR-205-FL & 5:13-CV-258-FL, 2014 WL 582954, at *3 (E.D. N.C. Feb. 13, 2014) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) (per curiam)).
To prevail on a claim of ineffective assistance of counsel (IAC), Petitioner must show that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 678-88 (1984). The reasonableness of counsel's performance must be judged according to the specific facts of the case at the time of counsel's conduct. Id. at 690. Additionally, a petitioner must show she was prejudiced by her attorney's deficient performance. Id. at 692. In the context of a plea, a petitioner “must show there is a reasonable probability that, but for counsel's errors, [s]he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). There is a strong presumption that counsel's conduct was within the wide range of reasonable professional assistance, and the petitioner bears the burden of demonstrating that counsel's assistance was neither reasonable nor the product of sound strategy. Strickland, 466 U.S. at 689. Unsupported, conclusory allegations are not sufficient to warrant relief under § 2255. See Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992), overruledon other grounds by Gray v. Netherland, 518 U.S. 152, 165-66 (1996).
I. Petitioner's Claims for Relief
Petitioner alleges her trial attorney provided ineffective assistance in three ways, each of which relates to application of U.S.S.G. § 2D.1. (b)(2) (providing for an increase of two offense levels for someone convicted of a drug distribution offense who possessed a firearm or dangerous weapon) to Petitioner's offense level calculation under the sentencing guidelines. (Mot. Vacate at 5; Mem. Supp. Mot. Vacate at 2-8.) First, Petitioner contends counsel failed to properly research application of § 2D.1.1(b)(2) to situations where a defendant's co-conspirator possessed a dangerous weapon and improperly advised Petitioner that § 2D.1. (b)(2) would “automatically appl[y]” to her based on her co-conspirator's possession of a BB gun. Second, Petitioner argues counsel incorrectly advised Petitioner that application of § 2D.1. (b)(2) would not prevent her from participating in the federal Bureau of Prisons' Residential Drug Abuse Program (RDAP), which generally allows an incarcerated person to earn a sentence reduction if completed successfully. Third, Petitioner maintains that counsel failed to research the different standards for possession of a dangerous weapon between U.S.S.G. §§ 2D.1. (b)(2) & 5C1.2(a)(2) and improperly advised Petitioner that the standards for proving possession of a dangerous weapon were the same, thereby advising Petitioner that she was ineligible for the so-called “safety-valve” guidelines reduction in U.S.S.G. §§ 2D.1. (b)(18) & 5C1.2(a). At no point in her filings does Petitioner allege she would have pleaded not guilty and proceeded to trial had her attorney not committed the errors she alleges. (Mot. Vacate at 2-13; Mem. Supp. Mot. Vacate at 1-8; Pet'r Resp. Opp'n at 1-20.) Petitioner states that if she “had accurate information, [she] would have asked the court to rule on [the guidelines issues raised in her § 2255 motion] rather than withdraw [the PSR] objections.” (Mot. Vacate at 5.)
U.S.S.G. § 5C1.2 specifies the criteria for the safety-valve reduction and § 2D1.1(b)(18) applies the reduction to the offense level calculation.
II. Discussion
A. Application of U.S.S.G. § 2D1.1(b)(2)
Petitioner's core argument is that her trial attorney was ineffective for failing to research the standard for application of § 2D1.1(b)(2) to a defendant whose coconspirator possessed a dangerous weapon. Petitioner correctly notes the standard is whether it was “reasonably foreseeable” to Petitioner that her co-conspirator would possess a dangerous weapon. (Mem. Supp. Mot. Vacate at 5.) The Fourth Circuit has summarized this issue as follows:
The two-level enhancement [under § 2D1.1(b)(2)] “‘should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.'” United States v. Gomez-Jimenez, 750 F.3d 370, 381 (4th Cir. 2014) (quoting U.S.S.G. § 2D1.1 cmt. n.11(A)). In particular, with respect to conspiracy cases, “weapons carried by a member of a conspiracy are attributable to a co-conspirator when ‘under the circumstances of the case, it was fair to say that it was reasonably
foreseeable to [the defendant] that his co-participant was in possession of a [dangerous weapon].'” Id. (quoting United States v. Kimberlin, 18 F.3d 1156, 1160 (4th Cir. 1994)). “‘[A]bsent evidence of exceptional circumstances, . . . it [is] fairly inferable that a codefendant's possession of a dangerous weapon is foreseeable to a defendant with reason to believe that their collaborative criminal venture includes an exchange of controlled substances for a large amount of cash.'” Kimberlin, 18 F.3d at 1160 (quoting United States v. Bianco, 922 F.2d 910, 912 (1st Cir. 1991)).United States v. Barahona, 606 Fed.Appx. 51, 70 (4th Cir. 2015) (unpublished) (second, third, and fourth alterations in original); see also United States v. Harris, 128 F.3d 850, 852-53 (4th Cir. 1997) (proximity of weapon to drugs can support § 2D1.1(b)(2) application); Jones v. United States, Nos. 7:08-CR-105-1F & 7:10-CV-22-F, 2010 WL 4484532, at *4 (E.D. N.C. 2010) (citing Kimberlin, 18 F.3d at 1159-60, and noting that “neither ownership nor actual knowledge is required, and to plead its absence is unavailing” regarding § 2D1.1(b)(2) application).
In her motion and supporting documents, Petitioner disavows any knowledge of the BB gun and states that she had told her co-conspirator on numerous occasions that she did not condone or tolerate weapons of any kind. (Mem. Supp. Mot. Vacate at 5-6.) She contends, therefore, that her co-conspirator's possession of the BB gun was not reasonably foreseeable to her. (Id.) For its part, the Government notes that the BB gun at issue was found in Petitioner's car while she was present and in close proximity to drugs and cash. (Gov't Mem. Supp. Mot. Dismiss at 10-11; see also PSR at 3 ¶ 7 (offense conduct summary), 14-15 ¶ 2 (U.S. Probation response to Petitioner's PSR objection).) Thus, the Government argues, it was not objectively unreasonable for Petitioner's attorney to withdraw the objection to § 2D1.1(b)(2). (Gov't Mem. Supp. Mot. Dismiss at 11.)
Petitioner's co-conspirator submitted, through a third-party, a letter stating that the BB gun was his and that Petitioner had no prior knowledge of its existence. (Letter [DE #49].)
In light of the foregoing caselaw, the undersigned agrees with the Government. Petitioner fails to appreciate that, under precedent interpreting § 2D1.1(b)(2), she need not have prior knowledge of a co-conspirator's possession of a dangerous weapon for the guidelines enhancement to apply. Here, it is undisputed that the BB gun was located under the driver's seat in Petitioner's car while she was a passenger being driven by her co-conspirator and that drugs and cash were found in the driver's side door panel and on her co-conspirator's person. On those facts, in conjunction with the aforementioned precedent, her attorney's decision to withdraw the objection was not objectively unreasonable. Petitioner's disavowal of prior knowledge of the BB gun is not exceptional. See Kimberlin, 18 F.3d at 1160; Jones, 2010 WL 4484532, at *4. Furthermore, the decision to withdraw the objection by Petitioner's counsel appears more reasonable because it may have contributed to the Government's substantial assistance motion, its granting of the additional offense-level reduction for acceptance of responsibility, and its recommendation for a sentence below the guidelines and statutory minimum. Lastly, Petitioner does not allege that she would have pleaded not guilty and proceeded to trial but for counsel's alleged deficiencies. See Hill, 474 U.S. at 59. Accordingly, Petitioner has failed to show, by a preponderance of the evidence, that her attorney was ineffective for withdrawing the objection to § 2D1.1(b)(2).
B. RDAP Ineligibility
As Petitioner clarifies in her response to the Government, her claim regarding her attorney's advice about RDAP eligibility depends, in large part, on the § 2D1.1(b)(2) enhancement. (Pet'r Resp. Opp'n at 14-15.) For the reasons explained above, Petitioner has failed to show her attorney provided constitutionally deficient assistance by withdrawing the objection to the dangerous weapon enhancement. Stripping the argument of that component, Petitioner's position is just that her attorney was wrong that the dangerous weapon enhancement would not prevent her from being eligible for RDAP when she went to federal prison. But that alone is not reason to vacate her conviction and judgment because there is neither a constitutional right to rehabilitative programs in prison, Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976), nor a right to conditional release before expiration of a sentence, Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). See Jones, 2010 WL 4484532, at *5 (discussing Moody and Greenholtz). Moreover, the court told Petitioner at sentencing that it would strongly recommend the most intensive substance abuse treatment available but that it would be up to the Bureau of Prisons to determine the impact of the § 2D1.1(b)(2) enhancement on any such treatment. (Audio of Mar. 26, 2019, sentencing hearing at 3:01 p.m.) Accordingly, Petitioner has failed to show her attorney was ineffective in this respect.
C. Safety-Valve Ineligibility
Petitioner also claims that counsel's alleged ineffectiveness regarding the § 2D1.1(b)(2) enhancement precluded her from receiving a reduction of two offense levels pursuant to the guidelines safety-valve provision, § 5C1.2. (Mot. Vacate at 5, 8 (“If the weapon enhancement is removed then the safety valve should apply.”); Mem. Supp. Mot. Vacate at 4, 7; Pet'r Resp. Opp'n at 16-18.) In support, Petitioner references United States v. Barron, 940 F.3d 903 (6th Cir. 2019), for the proposition that applicability of the § 2D1.1(b)(2) enhancement does not automatically preclude application of the safety-valve guideline. Petitioner is correct, and Barron cites United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997), to support the proposition that “possession of a firearm by a co-conspirator does not render a defendant ineligible for relief under the safety valve.” Barron, 940 F.3d at 914.
However, Petitioner remains ineligible for the safety valve for a separate reason: she has more than one criminal history point. See U.S.S.G. § 5C1.2(a)(1); (PSR at 6 ¶ 22, 14 ¶ 1 (explaining, in response to Petitioner's objection, why Petitioner was assessed two additional criminal history points). Thus, regardless of whether Petitioner's attorney provided incorrect advice about the interplay between the § 2D1.1(b)(2) enhancement and safety-valve eligibility, she would still be ineligible for safety-valve relief. Accordingly, Petitioner cannot show prejudice in this regard.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that the Government's motion to dismiss [DE #56] be GRANTED and Petitioner's motion to vacate [DE #50] be DISMISSED for failure to state a claim upon which relief can be granted.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 28, 2022, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. (Dec. 2019).
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).