United States District Court, D. South Carolina, Greenville Division
OPINION & ORDER
TIMOTHY M. CAIN, District Judge.
This matter is before the court on Darrell Anthony Cunningham's ("Cunningham") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 203). Cunningham has also filed a motion to appoint counsel (ECF No. 212). The Government filed a motion for summary judgment (ECF No. 215), and Cunningham filed a response opposing the motion. (ECF No. 222). For the reasons set forth below, the Government's Summary Judgment Motion is granted and Cunningham's motions are denied.
I. Procedural History
On January 8, 2013, Cunningham was indicted with conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A); carrying, using, and possessing a firearm during and in relation to a drug trafficking crime and in furtherance of such crime, in violation of 18 U.S.C. § 924(c)(1)(A). On September 18, 2013, Cunningham pled guilty to conspiracy to distribute cocaine pursuant to a plea agreement. (ECF Nos. 172, 194). On February 27, 2014, he was sentenced to 240 months of imprisonment and five years of supervised release. (ECF No. 196). On September 4, 2014, Cunningham filed this § 2255 motion.
II. Standard of Review
To obtain relief on a motion under 28 U.S.C. § 2255, the movant must prove that one of the following occurred: (1) his 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). Thus, a movant must establish either an error of "constitutional or jurisdictional magnitude" or an error which "could not have been raised on direct appeal, and if condoned, would result in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428 (1962). However, if a movant does not raise a claim on direct review, he may not raise it for the first time on collateral review unless the movant can show (1) cause and actual prejudice or (2) actual innocence. Bousley v. United States, 523 U.S. 614, 621-22, (1998). If the movant cannot satisfy the cause and prejudice analysis, movant may be excused from default if the case falls "within the narrow class of cases... implicating a fundamental miscarriage of justice.'" Schlup v. Delo, 513 U.S. 298, 314-15 (1995). To do so the movant must establish through new evidence "that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327.
In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that his counsel's performance fell below an objective standard of reasonableness, and (2) that his counsel's deficiencies prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the first prong, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id. at 689. With respect to the second prong, a petitioner must demonstrate 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).
In his § 2255 motion, Cunningham raises two grounds for relief: 1) his due process rights were violated by the governments's outrageous conduct of ensnaring him with a fake stash house; and 2) his trial counsel was ineffective in failing to move for a dismissal of the indictment due to the government's outrageous conduct and/or for failing to raise an entrapment defense.
A. Ground One
In his first ground for relief, Cunningham contends that his due process rights were violated because the government committed outrageous misconduct when it created a fake stash house only for the purpose of obtaining a conviction. In United States v. Russell, 411 U.S. 423 (1973), the Court addressed whether a defendant's due process rights were violated when the government created the crime solely to obtain a conviction. The defendant argued that the government's conduct was outrageous based upon an undercover agent's action of supplying a legal, but difficult to obtain, chemical which was necessary to manufacture methamphetamines. The Court rejected the defendant's due process claim stating, in dicta, that:
some day [the Court] may be presented with such a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction, ... [but] the instant case is not of that breed.
The Fourth Circuit has specifically acknowledged that a defense based upon outrageous government conduct may be available to a defendant. United States v. Jones, 13 F.3d 100, 104 (4th Cir. 1993). However, the Fourth Circuit has also not yet found any facts which would support such a defense. See United States v. Hasan, 718 F.3d 338, 343 (4th Cir. 2013)(holding that the doctrine of outrageous government conduct "survives in theory, but is highly circumscribed."). In Hasan, the Fourth Circuit held that "[o]utrageous is not a label properly applied to conduct because it is a sting or reverse sting operation involving contraband." Id. at 344. To establish a violation of due process, a defendant must show that the government's conduct violates fundamental fairness or shocks the universal sense of justice. Russell, 411 U.S. at 432. See also Hansen, 846 F.Supp.2d 541. The Fourth Circuit has consistently held that a due process violation may only be found when the conduct at issue "is outrageous, not ...