United States District Court, D. South Carolina, Florence Division
R. BRYAN HARWELL, District Judge.
Pending before the Court is Brian McNair's ("Petitioner's") pro se Motion to Vacate, Set Aside, or Correct Sentence ("Motion to Vacate") pursuant to 28 U.S.C. § 2255. For the following reasons, Petitioner's Motion to Vacate is dismissed.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
On May 22, 2011, a federal grand jury returned a five count superseding indictment against Petitioner. See Superseding Indictment, ECF No. 52. Count 1 charged Petitioner with conspiracy to possess with intent to distribute and distribute cocaine base, said conspiracy involving 280 or more grams or more of "crack" cocaine. See id. at 1. Count 2 further charged Petitioner with being a felon in possession of a firearm. See id. at 2. Count 3 further charged Petitioner with possessing with intent to distribute and distribution of a quantity of cocaine base. See id. at 3. Count 4 further charged Petitioner with possessing with intent to distribute and distribution of a quantity of cocaine base. See id. at 4. Finally, Count 5 also charged Petitioner with possessing with intent to distribute and distribution of a quantity of cocaine base. See id. at 5. On June 6, 2012, Petitioner entered into a written plea agreement. See Plea Agreement, ECF No. 64. In the plea agreement, Petitioner agreed to plead guilty to Count 3 of the indictment, possession with intent to distribute and distribution of a quantity of cocaine base, and in exchange the Government agreed to dismiss Counts 1, 2, 4, and 5 if Defendant complied with the terms of the agreement. See id. at 1-2. The Government also agreed to a stipulated sentence pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure if Petitioner complied with the terms of the agreement. See id. at 7.
On November 6, 2012, the Court sentenced Petitioner to a term of 180 months. See Minute Entry, ECF No. 82; Judgment, ECF No. 87. Petitioner filed a notice of appeal on November 6, 2012. See Notice of Appeal, ECF No. 83. Defense counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), alleging that he had found no meritorious issues for appeal but questioning whether the district court complied with Rule 11 of the Federal Rules of Criminal Procedure at McNair's change of plea hearing and whether his sentence was reasonable. See United States v. McNair, 524 Fed.App'x 901, 902 (4th Cir. 2013). Petitioner also filed a pro se brief asserting that the Double Jeopardy Clause of the Fifth Amendment barred his federal prosecution. Id. On May 16, 2013, the Fourth Circuit Court of Appeals found that the District Court complied with Rule 11's requirements and that McNair's federal prosecution was not in violation of double jeopardy, as his case was firmly within the dual sovereign exception. Id. at 902-03. The Fourth Circuit also dismissed Petitioner's appeal as to his Rule 11(c)(1)(C) stipulated sentence, finding that it lacked jurisdiction over the appeal. See id. at 903.
On July 1, 2013, Petitioner filed the instant Motion to Vacate. See ECF No. 111. Petitioner moved to supplement his motion with an additional affidavit on August 2, 2013, see ECF No. 118, which the Court granted on August 5, 2013, see Text Order, ECF No. 120. On October 9, 2013, the Government filed a Motion for Summary Judgment, asserting that Petitioner's Motion was without merit. See ECF No. 127. An Order filed October 16, 2013, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advised Petitioner of the dismissal procedure and the possible consequences if he failed to respond adequately. See ECF No. 128. The Government also filed a response in opposition to Petitioner's motion, and both of Petitioner's defense attorneys filed affidavits detailing their representation of Petitioner. See ECF Nos. 123-25. Plaintiff timely filed a response in opposition to Defendant's motion on November 25, 2013. See ECF No. 137.
Petitioner's Motion to Vacate alleges the following ground for relief:
Ground 1: Whether before the plea entry Mr. R. Scott Joye misadvised and failed to inform movant that his stipulated plea to 180 months imprisonment based on 1 kilogram of crack cocaine and a half kilogram of powder cocaine not noticed or charged by the grand jury and returned in the indictment Count Three and proven to a jury beyond a reasonable doubt, rendered his plea unintelligent and involuntary in violation of his 5th Amendment right to be informed of the nature and cause of the accusation against him, and his 6th Amendment right to effective assistance of counsel as guaranteed by the United States Constitution and due process and Fed. R. Crim. P. 11(c)(1)(C)?
ECF No. 113-3 at 1.
Prisoners in federal custody may attack the validity of their sentences pursuant to 28 U.S.C. § 2255. In order to move the court to vacate, set aside, or correct a sentence under § 2255, a petitioner must prove that one of the following occurred: (1) a sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a 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).
In deciding a motion to vacate, the court may summarily dismiss the motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rules Governing Section 2255 Proceedings 4(b); see 28 U.S.C. § 2255(b) (a hearing is not required on a § 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief). An evidentiary hearing "is required when a movant presents a colorable  claim showing disputed material facts and a credibility determination is necessary to resolve the issue." United States v. Coon, 205 Fed.App'x 972, 973 (4th Cir. 2006) (citing United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000)). However, a hearing is not required unless the claim shows "disputed facts involving inconsistencies beyond the record." United States v. Robinson, 238 Fed.App'x 954, 955 (4th Cir. 2007). Conclusory allegations contained within affidavits do not require a hearing. Strong v. Johnson, 495 F.3d 134, 139-40 (4th Cir. 2007). "Thus, no hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).
Petitioner's Motion to Vacate alleges ineffective assistance of counsel. Claims of ineffective assistance of counsel are constitutional in nature and therefore are properly asserted under § 2255. The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defense." U.S. Const. amend. VI. The United States Supreme Court has interpreted the Sixth Amendment to require that counsel be effective. Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)). In order to prevail on an ineffective assistance claim, petitioner must satisfy the two-prong test of Strickland that (1) his "counsel's representation fell below an objective standard of reasonableness" and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687-88, 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. A court applying the Strickland test may apply either prong first and does not need to analyze both prongs of the test if petitioner makes "an insufficient showing on one." Id. at 697.
In examining the performance of counsel, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. A reviewing court must be highly deferential in scrutinizing counsel's performance and must ...