Opinion
5:15-CR-19-FL 5:20-CV-452-FL
08-10-2021
BRETT MAYHEW, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge.
This matter comes before the court on Petitioner Brett Mayhew's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 and memorandum in support, [DE-47, -51], and the Government's motion to dismiss, [DE-58]. Petitioner was given an extension of time to respond to the Government's motion but has filed no response. The motions are referred to the undersigned for a memorandum and recommendation to the district court. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Crim. P. 59(b)(1). For the reasons stated below, it is recommended that the motion to dismiss be allowed, the § 2255 motion be denied, and the claims be dismissed.
I. PROCEDURAL HISTORY
On January 15, 2015, a federal Grand Jury in the Eastern District of North Carolina indicted Mayhew on the following charges: possession with the intent to distribute a quantity of cocaine in violation of 21 U.S.C. § 841(a)(1) (Count One); possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count Two); and felon in possession of firearms in violation of 18 U.S.C. §§ 922(g) and 924 (Count Three). [DE-1]. Mayhew was not arrested until August 27, 2018. On February 14, 2019, Mayhew pleaded guilty pursuant to a plea agreement to Counts One and Two, and the Government agreed to dismiss Count Three. [DE-22, -23]. Mayhew's counsel was allowed to withdraw prior to sentencing, and new counsel was appointed. [DE-34]. David Long entered an appearance on July 3, 3019. [DE-35]. On September 12, 2019, the court sentenced Mayhew to 46 months' imprisonment on Count One and 60 months' imprisonment on Count Two, to be served consecutively, for a total term of 106 months' imprisonment; 3 years' supervised release on Count One and 5 years' supervised release on Count Two, to run concurrently; a special assessment of $200.00; and no fine. [DE-39, -43]. Mayhew did not appeal his conviction or sentence.
On August 20, 2020, Mayhew timely filed the instant motion to vacate, set aside, or correct his sentence pursuant to § 2255, asserting (1) he received ineffective assistance from counsel at sentencing, and (2) his § 924(c) conviction was not supported by the facts. [DE-47]. On October 30, 2020, after receiving an extension of time to file an amended § 2255 motion, Mayhew filed a document titled Amended Memorandum of Law in Support of Petition for Relief Pursuant to 28 U.S.C. § 2255, in which he makes an argument in support of the ineffective assistance of counsel claim that his counsel should have requested a drug analysis to determine the purity of the drugs and the amount of cutting agent in order to argue for a further variance at sentencing. [DE-51]. The Government moved to dismiss the § 2255 motion for failure to state a claim. [DE-58].
Mayhew states as a third ground for relief "Low level, none vi." Pet. [DE-47] at 7. It is unclear to the court what Mayhew is asserting, and only the first ground for relief, the ineffective assistance of counsel claim, is briefed in Mayhew's memorandum. Accordingly, the court is unable to address the third ground for relief on the merits, and to the extent Mayhew has not abandoned the claim, it is recommended that it be dismissed.
II. STANDARD OF REVIEW
After conviction and exhaustion or waiver of any right to appeal, courts and the public can presume that a defendant stands fairly and finally convicted. See United States v. Frady, 456 U.S. 152, 164-65 (1982). However, prisoners in federal custody may attack the validity of their convictions pursuant to 28 U.S.C. § 2255. Section 2255 provides a means for a defendant convicted of a federal offense to collaterally attack a conviction or sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). "[T]hus § 2255 relief is not limited to constitutional error in a conviction or sentence." United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999) (citations omitted). Where a petitioner seeks relief from a nonconstitutional error, "the scope of review... is more limited than that of constitutional error; a nonconstitutional error does not provide a basis for collateral attack unless it involves a fundamental defect which inherently results in a complete miscarriage of justice, or is inconsistent with the rudimentary demands of fair procedure[.]" Id. (internal quotation marks and citations omitted). "In a § 2255 proceeding, the burden of proof is on petitioner to establish his claim by a preponderance of the evidence." Toribio-Ascencio v. United States, No. 7:05-CR-97-FL, 2010 WL 4484447, at *1 (E.D. N.C. Oct. 25, 2010) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint, not to resolve conflicts of fact or to decide the merits of the action. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). However, the "'[f]actual allegations must be enough to raise a right to relief above the speculative level' and have 'enough facts to state a claim to relief that is plausible on its face.'" Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (quoting Bell All. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Twombly, 550 U.S. at 555 (citations omitted). In considering a motion to dismiss, the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Revene v. Charles Cty. Comm'rs, 882 F.2d'870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Moreover, a court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
III. ANALYSIS
A. Ineffective Assistance of Counsel Claim
Mayhew asserts that his counsel should have requested a drug analysis to determine the purity of the drugs and the amount of cutting agent in order to argue for a further variance at sentencing based on the low purity, i.e., large amount of cutting agent, of the cocaine he possessed. [DE-51] at 3-4. The Government contends that Mayhew's ineffective assistance claim should be dismissed because total quantity, including cutting agent, rather than pure drug weight is used to determine the length of a sentence, and therefore, counsel was not ineffective in failing to obtain further analysis of the drugs. [DE-58] at 4-7.
The Sixth Amendment guarantees criminal defendants effective assistance of counsel. United States v. Murillo, 927 F.3d 808, 815 (4th Cir. 2019) (citing Strickland v. Washington, 466 U.S. 668, 685-86 (1984)). To demonstrate ineffective assistance of counsel, a petitioner must show that counsel's representation was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To establish deficient performance, the petitioner must overcome a '"strong presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). As to the prejudice component, a petitioner must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. It is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697 (explaining "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies" or "to address both components of the inquiry if the defendant makes an insufficient showing on one").
In the case of Chapman v. United States, the Supreme Court recognized that "Congress clearly intended the dilutant, cutting agent, or carrier medium to be included in the weight of [heroin and cocaine] for sentencing purposes"; in other words, "the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence." 500 U.S. 453, 459-61 (1991); Hines v. United States, No. 5:07-CR-323-BO, 2011 WL 6077895, at *3 (E.D. N.C. Dec. 6, 2011). Counsel could not have asserted a good-faith argument that Mayhew should have been sentenced solely based on the pure drug weight because that argument would be contrary to Congressional intent as recognized by the Supreme Court in Chapman. Counsel did successfully argue for a variance, and the court sentenced Mayhew to only forty-six months on Count One, a twenty-four month variance from the bottom of the guideline range of seventy to eighty-seven months. Sent. Tr. [DE-45] at 6-8. Mayhew's assertion that the court may have varied downward further based on the large amount of cutting agent Mayhew used to make the cocaine he sold is pure speculation, and counsel's strategic decision not to make such an argument was reasonable. See Strickland, 466 U.S. at 687. Furthermore, Mayhew has failed to satisfy the prejudice prong of Strickland. Mayhew has failed to demonstrate a reasonable probability that the result of the proceeding would have been different had counsel argued for a further variance based on the presence of a large amount of cutting agent in the total drug weight. Thus, counsel's failure to obtain testing to determine the pure drug weight was not ineffective, and it is recommended that this claim be dismissed.
B. § 924(c) Conviction Claim
Mayhew asserted in his petition that his § 924(c) conviction was not supported by the facts, Pet. [DE-47] at 5, but included no argument as to this claim in his memorandum, and the Government did not address it. To the extent Mayhew did not abandon this claim, it claim fails because it is barred by Mayhew's plea waiver and is procedurally defaulted.
Mayhew in his plea agreement waived his right to challenge his conviction or sentence in any post-conviction proceeding, including one under § 2255, and reserving only limited rights not applicable to a challenge to his § 924(c) conviction. Plea Agrmt. [DE-40] at 1 ¶ 2.c; see United States v. Dennis, No. CR 3:11-245-CMC, 2021 WL 3022674, at *3 (D.S.C. July 16, 2021) (finding direct attack on § 924(c) conviction fell 'squarely within the appeal waiver in which defendant waived his right to contest his conviction in a § 2255 proceeding). Additionally, because Mayhew did not raise his challenge to the § 924(c) conviction on direct appeal and has argued neither cause and prejudice nor actual innocence, his claim is procedurally defaulted. See Berry v. United States, No. 5:08-CR-247-FL-1, 2019 WL 6879349, at *7 (E.D. N.C. Dec. 17, 2019) ("Generally, 'claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice' or 'actual innocence.'" (quoting Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 623 (1998))). Accordingly, it is recommended that Mayhew's claim challenging his § 924(c) conviction be dismissed.
IV. CONCLUSION
For the reasons stated above, it is recommended that the motion to dismiss be ALLOWED, the § 2255 motion be DENIED, and the claims be DISMISSED.
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 August 24, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or 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).