United States District Court, D. South Carolina
OPINION and ORDER
CAMERON McGOWAN CURRIE, Senior District Judge.
Defendant, proceeding pro se, seeks relief in this court pursuant to 28 U.S.C. § 2255. Defendant raises several Grounds for Relief, including ineffective assistance of counsel. The Government filed a motion for summary judgment. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Defendant of the summary judgment procedure and the consequences if he failed to respond. Defendant has responded to the Government's motion and this matter is ripe for resolution.
In March 2012, Defendant was indicted in this District for conspiracy to possess with intent to distribute a quantity of cocaine, a quantity of cocaine base ("crack" cocaine), and a quantity of marijuana (Count 1), a violation of 21 U.S.C. §§ 841(b)(1)(A), 841 (b)(1)(C), 841(b)(1)(D) and 846; possession with intent to distribute and distribution of a quantity of cocaine, cocaine base ("crack" cocaine), and marijuana (Count 2), in violation of 21 U.S.C. §§ 841(b)(1)(C) and 841(b)(1)(D); possession of a firearm in furtherance of a drug trafficking crime (Count 3), in violation of 18 U.S.C. § 924(c)(1); and felon in possession of a firearm (Count 5), in violation of 18 U.S.C. § 922(g).
On September 10, 2012, Defendant entered into a plea agreement with the Government wherein he agreed to plead guilty to Counts 1 and 3 of the Indictment. The plea agreement contained a waiver of Defendant's right to file a direct appeal or to contest his sentence under 28 U.S.C. § 2255 absent a claim of ineffective assistance of counsel or prosecutorial misconduct. On this same day, Defendant appeared with counsel before the court and, after a thorough Rule 11 hearing, pleaded guilty to Counts 1 and 3.
A Presentence Report (PSR) was prepared in anticipation for sentencing. On December 14, 2012, Defendant appeared with counsel for sentencing. Based upon his criminal history, Defendant was found to be a career offender pursuant to U.S.S.G. § 4B1.1, and was sentenced to 262 months' imprisonment, consisting of 202 months' imprisonment as to Count 1 and sixty (60) months' imprisonment as to Count 3, to be served consecutively to Count 1.
Defendant filed a Notice of Appeal to the Fourth Circuit Court of Appeals. On August 7, 2013, the Fourth Circuit affirmed Defendant's conviction and sentence. United States v. Williams, 537 F.App'x 237 (4th Cir. 2013). On August 6, 2014, the Clerk of Court received Defendant's motion for relief under 28 U.S.C. § 2255 for filing.
Defendant contends, inter alia, that he received ineffective assistance of counsel. The standard governing ineffective assistance of counsel claims is found in Strickland v. Washington, 466 U.S. 668 (1984). In order to succeed on such a claim, Defendant must first show that his counsel's performance was "deficient, " Strickland, 466 U.S. at 687-88, and that such deficiency resulted in actual prejudice to Defendant. Id. As to the first prong of the Strickland test, a defense attorney's conduct is deficient if it fails to meet a standard of "reasonably effective assistance." Id. at 687. A reviewing court must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. See also Lockhart v. Fretwell, 506 U.S. 364, 371-72 (1993).
The failure of counsel to object to an improper application of the sentencing guidelines may amount to ineffective assistance of counsel. The Strickland standard applies to counsel's actions at sentencing. See Royal v. Taylor, 188 F.3d 239, 248-49 (4th Cir. 1999) (applying Strickland to ineffective assistance at sentencing claim, requiring only that "sentence would have been more lenient" absent counsel's errors). Prejudice exists when an error results in a longer sentence than would otherwise have been imposed. See Glover v. United States, 531 U.S. 198, 202-04 (2001) (holding that Sixth Amendment prejudice resulted from an asserted error that added six to twentyone months to the defendant's sentence). See also United States v. Smith, 497 F.App'x 269 (4th Cir. 2012) (same). "If the defendant cannot demonstrate the requisite prejudice, a reviewing court need not consider the performance prong." Fields v. Attorney Gen., 956 F.2d 1290, 1297 (4th Cir. 1992) (citing Strickland, 466 U.S. at 697).
A. Ground One - Ineffective Assistance of Counsel - Smarter Sentencing Act
Defendant contends counsel was ineffective in failing to argue that Defendant was entitled to relief under the Smarter Sentencing Act and that counsel failed "to file a direct appeal as I asked him to do on numerous occasions...." Mot. at 4, ECF No. 122. The Smarter Sentencing Act (S. 1410), has not been enacted. Moreover, counsel did file an appeal, and Defendant's case was reviewed by the Fourth Circuit Court of Appeals. ...