United States District Court, D. South Carolina, Charleston Division
PATRICK MICHAEL DUFFY UNITED STATES DISTRICT JUDGE.
Daquan Tyrek Brown (“Petitioner”), a federal prisoner proceeding pro se, moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (“Motion to Vacate”) (ECF No. 1801). The United States (“Government”) has filed a Motion to Dismiss (ECF No. 1887), which this Court construes as a motion for summary judgment. The Court has thoroughly reviewed the record and finds the motions suitable for disposition without an evidentiary hearing. For the reasons set forth herein, the Court grants the Government’s motion and, consequently, dismisses Petitioner’s motion.
Petitioner was one of twenty-five defendants named in an eighty-five count Third Superseding Indictment. Attorney William Thrower acted as Petitioner’s defense counsel.
Petitioner was charged in Counts 1, 29, 30, 48, 49, 50, and 56. Those charges related to his involvement in gang-related drug trafficking operations in Charleston, South Carolina. Count 1 charged Petitioner and his twenty-four co-defendants with engaging in a conspiracy to possess and distribute heroin, cocaine, crack cocaine, and marijuana, in violation of 21 U.S.C. § 841, and to use various locations in Charleston to make and distribute those drugs, in violation of 21 U.S.C. § 856.
Counts 29 and 30 related to the shooting of Malik Walker, a member of another area gang. According to the Government, on August 13, 2010, Walker fired shots into an apartment occupied by members of Petitioner’s gang. The following day, Petitioner and several of his associates discussed Walker’s attack, armed themselves, got into a car. After a lookout determined no police were nearby, they drove to a nearby neighborhood where Walker’s gang had a presence. When they found Walker riding a bike on the street, the driver pulled the car alongside Walker and then one or two of the car’s occupants opened fire. One of the bullets hit Walker in the abdomen, damaging his colon. Walker survived, but he underwent two surgeries and was intubated for several days after the event. Count 29 charged Petitioner and two co-defendants with discharging a firearm in connection with a crime of violence and drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Count 30 charged Petitioner and the same two co-defendants with felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Both charges included language accusing Petitioner of aiding and abetting his two co-defendants in those offenses.
Counts 48, 49, and 50 related to a May 2011 search of Petitioner’s apartment, in which police found cocaine, crack cocaine, a substantial amount of cash, and a loaded pistol. Based on that evidence, Count 48 charged Petitioner with possession with intent to distribute cocaine and crack cocaine, in violation of 21 U.S.C. § 841. Count 49 charged Petitioner with unlawful use and possession of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Last, because Petitioner had previously been convicted of a felony, Count 50 charged him with another count of felon in possession, in violation of 18 U.S.C. § 922(g)(1).
Finally, Count 56 charged Petitioner with using a telephone to facilitate several felonies relating to the distribution of heroin, in violation of 21 U.S.C. §§ 841 and 846.
On December 6, 2012, Petitioner entered into a plea agreement with the Government. He agreed to plead guilty to Counts 1, 29, 30, 48, 50, and 56, in exchange for the Government dismissing Count 49. Pursuant to the plea agreement, Petitioner agreed to, inter alia, waive his right to contest either his conviction or his sentence in a direct appeal or in any other post-conviction action. That waiver, however, did not apply to claims of prosecutorial misconduct or ineffective assistance of counsel.
After he pled guilty, Petitioner made pro se requests to withdraw his guilty plea and to obtain substitute counsel. The Court denied both motions, and Thrower continued representing Petitioner.
Following Petitioner’s guilty plea, a probation officer prepared a Presentence Investigation Report (“PSR”). In the PSR, the probation officer recommended a prison sentence of 308 months: 188 months for Counts 1 and 48; 120 months for Counts 30 and 50; 96 months for Count 56; and 120 months for Count 29. All sentences were to run concurrently, except that the 120 months for Count 29 had to be served consecutively. See 18 U.S.C. § 924(c)(1)(A).
No one objected to the PSR. On June 17, 2013, the Court adopted the PSR without change and sentenced Petitioner to the recommended 308 months in prison. Petitioner did not file a direct appeal.
On July 1, 2013, Petitioner appeared pro se and filed a motion to vacate. He later moved to withdraw that motion. On December 4, 2013, this Court granted the motion to withdraw and dismissed the motion without prejudice.
Petitioner filed his current Motion to Vacate on June 16, 2014. The Court ordered the Government to file a response, and on December 2, 2014, the Government filed its Motion to Dismiss. The Government later supplemented its motion with an additional memorandum and an affidavit from Thrower. Petitioner filed replies to both of ...