Opinion
4:20-CR-5-2FL 4:23-CV-126-FL
04-04-2024
JERRELL TAYLOR, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE
This matter is before the court for consideration of Petitioner's 28 U.S.C. § 2255 motion to vacate [DE #197]. The Government has moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted [DE #203]. Petitioner has responded in opposition to the Government's motion [DE #206]. This matter has been referred to the undersigned for memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the Rules Governing Section 2255 Proceedings. For the reasons explained below, the undersigned recommends that the Government's motion to dismiss be granted.
BACKGROUND
On January 14, 2020, Petitioner was charged with conspiracy to distribute five hundred grams or more of a substance containing methamphetamine, in violation of 21 U.S.C. § 846 (count one); and possession with the intent to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and aiding and abetting that offense, in violation of 18 U.S.C. § 2 (count four). (Indictment [DE #14].) Petitioner pleaded guilty, pursuant to a written plea agreement, on July 27, 2021. (Min. Entry July 27, 2021, Arraignment [DE #141]; Plea Agt. [DE ##143, 185] at 1.) In exchange for his guilty plea, the parties stipulated to a base offense level of 32 based upon the drug quantity attributable to Petitioner (at least 3,000 kilograms but not more than 10,000 kilograms of converted drug weight) (see U.S. Sentencing Guidelines Manual (“U.S.S.G”) § 2D1.1(a)(5), (c) (U.S. Sentencing Comm'n 2018) and a downward adjustment for acceptance of responsibility pursuant to U.S.S.G § 3E1.1. (Plea Agt. at 1, 9.) Petitioner also agreed to waive his appellate rights. (Id. at 1.)
The United States Probation Office prepared a draft Presentence Report (“PSR”) on November 2, 2021, to which Petitioner, through counsel, objected. (Draft PSR [DE #148]; Def.'s PSR Objs. [DE #149].) In calculating Petitioner's offense level, the Probation Office applied a specific offense characteristic increase under U.S.S.G § 2D1.1(b)(12) and an upward adjustment for role in the offense under U.S.S.G § 3B1.1(b) to which the parties had not stipulated in the plea agreement. (Draft PSR at 12.) Petitioner objected to the specific offense characteristic increase and role adjustment. (Def.'s PSR Objs.) The Government also objected to the draft PSR on the grounds that an upward role adjustment under § 3B1.1(a) and a specific offense characteristic increase under § 2D1.1(b)(16)(A) were warranted. (Gov't PSR Objs. [DE #150].) On December 10, 2021, the Probation Office issued a final PSR rejecting both Petitioner's and the Government's objections. (Final PSR [DE #152] at 16-18.) After issuance of the final PSR but before the sentencing hearing, Petitioner's attorney filed a sentencing memorandum where she, among other things, elaborated on her objection to the PSR's role adjustment pursuant to § 3B1.1(b) and argued against the Government's position that a role adjustment pursuant to § 3B1.1(a) should apply. (Sent'g Mem. [DE #180] at 8-11.)
On July 20, 2022, the court determined Petitioner's advisory guidelines range to be 188-234 months' imprisonment and imposed a downward variant sentence of 180 months' imprisonment on both counts, to be served concurrently. (J. [DE #187]; Stmt. Reasons [DE #188].) In so doing, the court overruled Petitioner's PSR objections, sustained the Government's objection regarding the upward role adjustment pursuant to § 3B1.1(a), finding that Petitioner was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, and declined to find that Petitioner met the criteria for a specific offense characteristic increase under § 2D1.1(b)(16)(A). (Audio of July 20, 2022, Sent'g Hr'g at 3:11 to 3:12 p.m.) Petitioner did not appeal.
On July 19, 2023, Petitioner filed the instant motion to vacate. (Mot. Vacate [DE #197].) Petitioner raises two grounds for relief. First, Petitioner summarizes caselaw expressing policy disagreement with the guidelines' treatment of methamphetamine and contends, in conclusory fashion, that he was sentenced in a way that over-represents the severity of his conduct. (Mot. Vacate at 14-17.) Second, Petitioner argues that his attorney committed ineffective assistance of counsel by refusing Petitioner's request “to place [United States v. Slade, 631 F.3d 185 (4th Cir. 2011),] into the judicial record” to support Petitioner's objection to the PSR's application of the upward role adjustment under § 3B1.1(b) and by otherwise “allow[ing] the Court to assign[] a leadership role against the petitioner.” (Mot. Vacate at 17-18.)
In his motion, Petitioner misstates the authority for his argument. Specifically, Petitioner cites “United States v. Moreno, 583 F.Supp.3d 739 (4th Cir. 2019.” (Mot. Vacate at 14.) The case name and reporter volume and pagination are correct, but the citation is to a district court memorandum opinion from the United States District Court for the Western District of Virginia, not an opinion from the Fourth Circuit. See United States v. Moreno, 583 F.Supp.3d 739 (W.D. Va. 2019).
The Government argues that Petitioner has failed to state a claim upon which relief can be granted. (Gov't Mot. Dismiss [DE #203]; Gov't Mem. Supp. Mot. Dismiss [DE #204].) Specifically, the Government contends that (i) Petitioner's attorney did not provide ineffective assistance; (ii) Petitioner's challenge to the role adjustment increase is an attempt to retroactively challenge the guidelines calculation, which is proscribed by United States v. Foote, 784 F.3d 931, 935-36 (4th Cir. 2015), United States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999), and United States v. Mikalajunas, 186 F.3d 490, 496 (4th Cir. 1999); and (iii) Petitioner's claim regarding application of the role adjustment is subject to procedural default. (Gov't Mem. Supp. Mot. Dismiss at 5-8.)
DISCUSSION
Under § 2255, there are four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (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).
A. Policy Disagreement with Methamphetamine Guideline
Petitioner's argument that his sentence was unlawful because the methamphetamine guideline overstates the seriousness of his conduct should be rejected for several reasons. First, while courts may choose not to follow the methamphetamine guideline, there is no requirement to do so. See, e.g., Hatcher v. United States, No. 5:20-CR-32-KDB-SCR, 2024 WL 666497, at *3 (W.D. N.C. Feb. 16, 2024). Second, Petitioner entered into a written plea agreement in which he stipulated to the relevant drug weight for purposes of calculating his advisory guidelines range and waived his right to challenge the court's guideline determination. (Plea Agt. at 1, 9); United States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012) (“Pleading guilty generally involves a conscious decision to accept both the benefits and burdens of a bargain. That decision may not be lightly undone by buyer's remorse on the part of one who has reaped advantage from the purchase.”). Third, in addition to the enforceable waiver of Petitioner's right to challenge the sentence imposed, this ground for relief is subject to procedural default. Section 2255 is not a substitute for direct appeal. Hatcher, 2024 WL 666497, at *2 (citing United States v. Frady, 456 U.S. 152, 165 (1982)). “Claims of error that should have been raised on direct appeal, but were not, are procedurally barred unless the petitioner shows both cause for the default and actual prejudice or demonstrates that []he is actually innocent of the offense.” Hatcher, 2024 WL 666497, at *2 (citing Bousley v. United States, 523 U.S. 614, 621-22 (1998)); see also Massaro v. United States, 538 U.S. 500, 504 (2003). Petitioner has shown neither cause and prejudice for failure to raise this issue on direct appeal nor actual innocence. Accordingly, this claim fails.
B. Ineffective Assistance of Counsel
Petitioner alleges his attorney provided ineffective assistance of counsel (“IAC”) by failing to cite United States v. Slade, 631 F.3d 185 (4th Cir. 2011), in support of her objection to application of an upward role adjustment under U.S.S.G § 3B1.1. (Mot. Vacate at 17-18; Pet'r's Resp. Opp'n Gov't Mot. Dismiss (“Pet'r's Resp.”) [DE #206] (acknowledging that trial counsel “raised awareness about the ‘Leadership Role' in court” but contending that failure to specifically cite Slade constituted IAC).)
To prevail on an IAC claim, 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 he was prejudiced by his attorney's performance. Id. at 692. 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). In the context of a guilty plea, a petitioner also “must show 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.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Fugit, 703 F.3d at 260.
Tactical and strategic decisions by counsel, “such as what evidence should be introduced, what stipulations should be made, [and] what objections should be raised,” United States v. Chapman, 593 F.3d 365, 368 (4th Cir. 2010) (quoting Sexton v. French, 163 F.3d 874, 885 (4th Cir. 1998)), are given “wide latitude” in the context of an IAC claim, Strickland, 466 U.S. at 689. These matters are left to the sound judgment of counsel. Chapman, 593 F.3d at 369. “Counsel need not consult with the client about the matter or obtain the client's consent.” Id. Tactical and strategic decisions remain counsel's even if the client disagrees, and counsel's decisions are not made “unreasonable simply because the client expressed a contrary view.” Chapman, 593 F.3d at 369.
In contrast, a defendant's expressed wishes whether to plead guilty, waive the right to jury trial, testify in his own defense, or appeal must be followed by defense counsel. Chapman, 593 F.3d at 369 (citing Florida v. Nixon, 543 U.S. 175, 187 (2004)).
Petitioner has failed to plausibly allege IAC for counsel's tactical decision not to cite Slade. First, trial counsel litigated the role adjustment, as evidenced by her objection to the PSR and sentencing arguments against the PSR's recommended adjustment pursuant to § 3B1.1(b) and the Government's (ultimately successful) argument for an upward adjustment pursuant to § 3B1.1(a). (Def.'s PSR Objs.; Sent'g Mem. at 8-11.) Furthermore, the argument that trial counsel advanced in the sentencing memorandum almost exactly tracks the analysis in Slade. Compare (Sent'g Mem. at 9-10 (“[T]he evidence, taken as a whole, reflects only that a number of different individuals were involved in the offense conduct, as would necessarily be the case in any drug trafficking conspiracy. [Petitioner]'s communications and alleged direction of the actions of others show only the degree of coordination required to purchase drugs from a supplier and distribute them.”)) with Slade, 631 F.3d at 191 (finding evidence insufficient to support leadership enhancement where defendant “supplied large quantities of drugs to some co-conspirators who, in turn, sold those drugs to their clientele,” but there was “simply no evidence that [he] exercised any supervisory responsibility over these persons by controlling them or directing the terms of their sales”). Petitioner has offered no evidence from which it could be plausibly inferred that the court would have decided this issue differently had trial counsel included a citation to Slade, especially since the court rejected the PSR's application of § 3B1.1(b) and instead found the evidence sufficient to impose the more severe upward role adjustment for being an organizer or leader under § 3B1.1(a). See Strickland, 466 U.S. at 692; Nickerson, 971 F.2d at 1136.
Petitioner argues that counsel's failure to cite Slade caused a forfeiture of this issue for appellate review. (Mot. Vacate at 18.) However, he has failed to demonstrate that counsel's PSR objection and fulsome sentencing memorandum would not have preserved this issue for appellate review under Fourth Circuit precedent. See, e.g., United States v. Hope, 28 F.4th 487, 494-95 (4th Cir. 2022); Wards Corner Beauty Academy v. Nat'l Accrediting Comm'n Career Arts & Sciences, 922 F.3d 568, 578 (4th Cir. 2019).
Petitioner's claim against trial counsel regarding the upward role adjustment is contravened by the record. Petitioner has failed to overcome the presumption of reasonableness applying to trial counsel's performance and to otherwise carry his burden to state a plausible IAC claim.
C. Request for the Appointment of Counsel
In the final sentence of his motion to vacate, Petitioner requests that the court “appoint him new counsel in his case.” (Mot. Vacate at 18.) To the extent this is a request for appointment of counsel in connection with the motion to vacate, this request should be denied, as exceptional circumstances warranting appointment of counsel do not exist here for the reasons explained above. See 18 U.S.C § 3006A(a)(2)(B) (permitting appointment of counsel in § 2255 proceedings if “the interests of justice so require”); Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984) (holding that the interests of justice requirement appointment of counsel only in the most “exceptional circumstances”); Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978) (exceptional circumstances warranting appointment of counsel exist where a pro se litigant has raised a colorable claim but lacks the capacity to present it).
CONCLUSION
For the foregoing reasons, Petitioner's motion for appointment of counsel is DENIED and it is RECOMMENDED that the Government's motion to dismiss [DE #203] be GRANTED and Petitioner's motion to vacate [DE #197] 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 the parties. Each party shall have until April 22, 2024, 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. (May 2023).
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).