Opinion
5:21-CR-257-FL-3 5:22-CV-221-FL
05-16-2023
EDWARD NATHANIEL DAWSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
This matter is before the court on petitioner Edward Nathaniel Dawson's (“petitioner” or “Dawson”) motions to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (DEs 116; 118) (collectively “§ 2255 motions”). The matter is also before the court on respondent's motion to dismiss (DE 122). Petitioner responded in opposition to the motion to dismiss (DE 125), and responsive briefing is complete. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). For the reasons stated below, the undersigned recommends that respondent's motion to dismiss (DE 122) be allowed and petitioner's § 2255 motions (DEs 116; 118) be denied.
I. BACKGROUND
On October 12, 2021, petitioner pleaded guilty, pursuant to a written plea agreement, to conspiracy to distribute and possess with the intent to distribute a quantity of heroin, and a quantity of fentanyl, cocaine, and cocaine base (crack), in violation of 21 U.S.C. § 846 (count one); and distribution of a quantity of heroin and fentanyl, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (count five).
Prior to sentencing, the United States Probation Office filed a presentence investigation report (“PSR”) determining petitioner's advisory sentencing guideline range to be 24 to 30 months' imprisonment, based upon on a total offense level of 13 and a criminal history category of IV. Final PSR (DE 91) ¶89; Sentencing Transcript (Tr.) (DE 133) at 4.
On March 17, 2022, the court granted the government's motion for a downward departure and sentenced petitioner to 18 months' imprisonment on each of the counts, to be served concurrently, and three years' supervised release on each of the counts, to be served concurrently. Judgment (DE 97) at 4. Petitioner did not appeal his judgment of conviction. Pet'r's 2nd Mem. (DE 118) ¶8. On April 11, 2022, petitioner filed a motion for reconsideration (DE 111) of his judgment, which was subsequently refiled as a motion to vacate under 28 U.S.C. § 2255 (Pet'r's 1st Mem. (DE 116)). The court issued an order (DE 117) noting that petitioner's § 2255 motion to vacate (Pet'r's 1st Mem. (DE 116)) did not substantially follow the form appended to the Rules Governing § 2255 Proceedings and the court directed petitioner to correct and return the proper form (DE 117). In response, petitioner filed a § 2255 motion to vacate on the appropriate form. Pet'r's 2nd Mem. (DE 118).
In his § 2255 motions (DEs 116; 118), petitioner asserts two claims for ineffective assistance of counsel. Petitioner alleges that counsel provided ineffective assistance by failing to: (1) file a motion to suppress; and (2) failing to object to his criminal history calculation in the PSR. Pet'r's 2nd Mem. (DE 118) at 4. Petitioner also asserts a claim regarding his sentencing, challenging his sentencing guideline range based on his criminal history and base offense level. Id. at 5.
On July 27, 2022, respondent moved to dismiss the petition (DE 122). Respondent argues that petitioner's § 2255 claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Id. Petitioner filed a response in opposition. (DE 125).
II. STANDARD OF REVIEW
A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Unless 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). “The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions, or the [§ 2255 Rules], may be applied to” § 2255 proceedings. Rules Governing Section 2255 Proceedings, Rule 12.
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the § 2255 petition but “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). The petition states a claim if it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating the petition, “[the] court accepts all well pled facts as true and construes these facts in the light most favorable to the [petitioner],” but does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). In reviewing a motion to dismiss a § 2255 petition, the court may consider the “files and records of the case” without converting the motion into one for summary judgment. 28 U.S.C. § 2255(b); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining court may “properly take judicial notice of matters of public record” when deciding Rule 12(b)(6) motion).
III. ANALYSIS
As noted above, petitioner effectively brings two claims for ineffective assistance of counsel and one claim for sentencing errors. For the reasons stated below, each of petitioner's grounds fail.
In order to establish ineffective assistance of counsel, a petitioner must satisfy a twopronged test. See Strickland v. Washington, 466 U.S. 688, 687 (1984). Under the first prong, a petitioner must show that his counsel's representation “fell below an objective standard of reasonableness.” Id. at 688. The court must be “highly deferential” to counsel's performance and must make every effort to “eliminate the distorting effects of hindsight.” Id. at 689. Therefore, the court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. The second prong requires a petitioner to demonstrate that he was prejudiced by the ineffective assistance by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In the context of a guilty plea, the prejudice prong requires a showing that “there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
1. Failure to file a motion to suppress
Petitioner first claims that counsel was ineffective for failing to “put in a motion to suppress 4 warrants in [petitioner's] case that were in violation of [petitioner's] constitutional rights.” Pet'r's 2nd Mem. (DE 118) at 4. Although somewhat difficult to discern, petitioner's claim appears to be based on a theory that his counsel should have moved to suppress certain state arrest warrants which - because they were all pending at the same time, but not served at the same -therefore allegedly led to petitioner's arrest on multiple occasions. See (DE 55) at 1. However, petitioner fails to show how any of these allegations resulted in a sentencing disparity. Aside from his other claims that the court addresses separately below, petitioner does not cite to any information, which could have been used by his counsel to mitigate his sentence but was not. Petitioner's claim for ineffective assistance of counsel on this basis is wholly conclusory and subject to summary dismissal for this reason alone. See Jones v. Polk, 401 F.3d 257, 269-70 (4th Cir. 2005) (conclusory habeas claims are subject to summary dismissal). Petitioner provides no legitimate basis for this assertion, it is, therefore, without merit and thus fails as a matter of law.
In addition, this claim fails because petitioner knowingly and voluntarily pleaded guilty to his crimes. See (DE 68; 70); see also United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir.2005) (noting that, absent “extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established”). Petitioner does not allege any defects with his Rule 11 hearing and does not point to any facts to undermine his knowing and voluntary agreement to plead guilty. See generally (DE 116; 118). Before petitioner entered his plea, the court explained to him, in detail, his various rights, including his right of appeal (Arraignment Tr. (DE 135) at 3-11); the maximum sentence he faced for the charges to which he was pleading guilty (id. at 16); and the court's role as making the final determination on his sentence (id. at 8-9).
Petitioner also does not allege that the court failed to offer petitioner an opportunity to challenge any failure to file a motion to suppress. “[C]ourts must be able to rely on the defendant's statements made under oath during a properly conducted Rule 11 plea colloquy.” Lemaster, 403 F.3d at 221. Petitioner's guilty plea is presumed “valid and binding,” as he does not allege any facts suggesting his guilty plea was not knowingly and voluntarily made. See United States v. Nicholson, 676 F.3d 376, 384 (4th Cir.2012).
All non-jurisdictional defects are waived by a valid guilty plea. United States v. Willis, 992 F.2d 489, 490 (4th Cir.1993). This waiver includes the deprivation of constitutional rights occurring prior to petitioner's guilty plea. Tollett v. Henderson, 411 U.S. 258, 266-67 (1973). Therefore, any claim that counsel should have filed a motion to suppress or objected to validity of warrants is waived. See, e.g., Xiao Chen Lin v. United States, 2021 WL 1110705, at *8 (N.D.Tex. Mar. 4, 2021) (“Because his guilty plea was knowing and voluntary, he waived all of his claims related to the initial appearance and pretrial stages, including his claim of ineffective assistance of counsel for failure to file a motion to suppress[.]”); United States v. Johnson, No. 4:09CR00065-01-BRW, 2011 WL 1754086, at *1 (E.D. Ark. May 6, 2011) (“Petitioner's challenge to the validity of the search warrant has likewise been waived by his voluntary guilty plea.”).
Furthermore, at the time of his guilty plea, petitioner knew of all the alleged defects regarding a motion to suppress about which he currently complains. Petitioner knew that his counsel had not filed a motion to suppress the warrants in question, evidenced by the fact that petitioner complained of this exact issue in his motion to appoint new counsel (DE 55), which petitioner subsequently withdrew (DE 67). Armed with this knowledge, petitioner agreed “to waive any right to contest the conviction or the sentence in any post-conviction proceeding, including any proceeding under 28 U.S.C. § 2255, excepting an appeal or motion based on the grounds of ineffective assistance of counsel . . . not known to the [petitioner] at the time of the [petitioner's] guilty plea.” Plea Agreement (DE 95) ¶ 2(c). Accordingly, the terms of his plea agreement preclude petitioner's challenge to his counsel's alleged failure to file a motion to suppress because this issue was known to him at the time of his guilty plea. See, e.g., Barnes v. United States, 2012 WL 43113, at *2 (N.D.W.Va. Jan. 9, 2012) (finding that the petitioner's ineffectiveness claim was precluded by his plea agreement where any failure by his counsel to file a motion to suppress was known to him at the time of his guilty plea.).
In light of the above and petitioner's testimony during his arraignment, his claims of ineffective assistance of counsel are refuted by the record and subject to dismissal. See Blackledge v. Allison, 431 U.S. 63, 74 (1977). Moreover, petitioner has not alleged extraordinary circumstances sufficient to disregard the sworn testimony during the plea colloquy. See Fontaine v. United States, 411 U.S. 213, 214-15 (1973); United States v. White, 366 F.3d 291, 297-99 (4th Cir. 2004.
2. Removal of incorrect entries from PSR
Petitioner next claims that counsel provided ineffective assistance by failing to object to the criminal history errors in his PSR. Petitioner argues that his “criminal history points and my offense level points dont [sic] add up.” Pet'r's 2nd Mem. (DE 118) at 5.
Petitioner specifically alleges that a “2001” conviction for possession of a stolen motor vehicle and violent burglary were double counted, mistakenly adding six points, as opposed to three points to his PSR. Pet'r's 1st Mem. (DE 116) at 1. He further alleges that as he was incarcerated from 2001 to 2010, a “2005” conviction for assaulting a police officer; a “2009” conviction for enhancement property offense; and second conviction in 2009 for enhancement property offense were mistakenly in his PSR adding three, two and one point, respectively. Id. Each of these allegedly mistaken entries or double scoring, however, appeared in the Draft PSR (Draft PSR (DE 77) at 10-11), not the Final PSR (DE-91). Each of these alleged mistakes was corrected or addressed in the Final PSR (Final PSR (DE 91) at 10), and petitioner's claim is therefore frivolous.
The offense conduct occurred in 2001, but the conviction occurred in 2002. See (DE 91) at 10.
The court notes that according to his final PSR, petitioner was found guilty on October 23, 2002, and released from custody on December 31, 2009. Id.
The offense conduct occurred in 2005, but the conviction occurred in 2006. (DE 77) at 11.
The offense conduct for the second enhancement property offense occurred in 2009, but the conviction occurred in 2010. (DE 77) at 11.
Moreover, petitioner's criminal history was properly calculated in the Final PSR. Section 4A1.1 of the United States Sentencing Guidelines provides instruction on the assignment of points when calculating a defendant's criminal history category. U.S.S.G. § 4A1.1. For his 2002 felony convictions for possession of a stolen motor vehicle and violent burglary, petitioner received sentences of 5 years' and 15 years' custody, respectively. These convictions were properly scored in the Final PSR with three criminal history points. Final PSR (DE 91) at 10. Petitioner's 2010 conviction for driving while impaired resulted in a “sentence of imprisonment of at least sixty days,” U.S.S.G. § 4A1.1(b), and was therefore properly assessed with two points. Id. Petitioner's 2016 conviction for driving while license revoke, as well as his 2019 conviction for possession of stolen goods, were each properly scored with one criminal history point under U.S.S.G. § 4A1.1(c). Id. Because petitioner's criminal history was properly scored in the Final PSR, as adopted by the court at sentencings, any challenge by petitioner's counsel would have been frivolous and meritless.
Petitioner's counsel is not deficient by failing to file a frivolous challenge to petitioner's criminal history calculation. See, e.g., Alexander v. United States, 2005 WL 1278949, at *5 (W.D.Va. May 26, 2005) (noting that since objection to “the calculation of his criminal history score would have been futile, [petitioner] cannot show that his attorney was constitutionally ‘ineffective' in failing to make these arguments at sentencing.”); United States v. Harris, 2019 WL 3797356, at *2 (W.D.Va. Aug. 12, 2019) (noting that [defendant's] criminal history was properly calculated and “his attorney did not provide ineffective assistance by failing to argue to the contrary”). Accordingly, petitioner's claim here is without merit, and it is recommended that this claim be denied.
3. Improper advisory guideline range
Last, petitioner claims that his criminal history and offense level should have resulted in a lower sentence. Respondent argues that petitioner is essentially utilizing § 2255 to make a retroactive challenge to the calculation of his advisory sentencing guideline range. (DE 123) at 89.
As respondent correctly notes in its motion to dismiss, petitioner cannot use § 2255 to challenge his advisory guideline range retroactively. See, e.g., United States v. Foote, 784 F.3d 931, 935-36 (4th Cir. 2015) (“[Sentencing a defendant pursuant to advisory Guidelines based on a career offender status that is later invalidated does not meet [the] remarkably high bar [for showing the required fundamental defect in the sentencing]”); United States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999) (“Barring extraordinary circumstances . . . an error in the application of the Sentencing Guidelines cannot be raised in a § 2255 proceeding.”).
However, even if petitioner were allowed to challenge the calculation of his advisory guideline range, his claim would still fail. As discussed in detail above, the undersigned recommends that petitioner's objection to the calculation of his criminal history in the PSR be denied. Petitioner's claim that his advisory guideline range reflected an incorrect drug weight fails because petitioner agreed to the drug weight in his plea agreement. The parties agreed in the plea agreement that the “readily provable” drug weight to be used in determining petitioner's base offense level for sentencing purposes was “at least 20 kilograms but less than 40 kilograms of converted drug weight.” Plea Agreement [DE 95] at 8. The PSR, which the court adopted at sentencing, calculated petitioner's “base offense level” using the agreed-to weight. PSR [DE 91] at 6. Statement of Reasons [DE 98] at 1 §I.A. Petitioner affirmed at sentencing that he read the PSR and had enough time to talk with his counsel to be ready for sentencing. Sentencing Tr. [DE 133] at 2: 13-17. Therefore, there was no error in the court using the drug weight to which petitioner stipulated in the plea agreement. See Cervantes-Sanchez v. United States, No. 5:18-CR-48-KDB-DSC-5, 2020 WL 2556955, at *6 (W.D. N.C. May 20, 2020) (“Counsel cannot be deemed ineffective for failing to object to facts contained in the PSR to which Petitioner stipulated as part of his free and voluntary guilty plea.”), appeal dismissed, 837 Fed.Appx. 247 (4th Cir. 2021).
As discussed above, petitioner knowingly and voluntarily entered the plea agreement and has not alleged any facts to the contrary. Accordingly, the undersigned recommends that this final claim also be denied.
IV. CONCLUSION
For the reasons stated above, IT IS RECOMMENDED that respondent's motion to dismiss (DE 122) be allowed and petitioner's § 2255 motions (DEs 116; 118) be denied.
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 May 31, 2023, to file written objections to this 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. Any response to objections shall be filed within 14 days of the filing of the objections.
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).