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Kennedy v. United States

United States District Court, D. South Carolina

January 21, 2016

Vincent Edward Kennedy, Petitioner,
v.
United States of America, Respondent. Criminal Action No. 8:12-cr-00949-JMC-20

ORDER AND OPINION

This matter is before the court on Petitioner Vincent Edward Kennedy’s (“Petitioner”) Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Motion to Vacate”) Pursuant to 28 U.S.C. § 2255. (ECF No. 1301.) Petitioner filed a Reply to the Government’s Non-Response (ECF No. 1364) to which the Government filed a Response in Opposition (ECF No. 1372) and a Motion for Summary Judgment (ECF No. 1373). Thereafter, Petitioner filed an additional Response (ECF No. 1379). For the following reasons, the court DENIES Petitioner’s Motion to Vacate (ECF No. 1301) and GRANTS the Government’s Motion for Summary Judgment (ECF No. 1373).

I. JURISDICTION

This court has jurisdiction over this matter pursuant to 28 U.S.C. § 2255, which states that a federal district court has jurisdiction to entertain a § 2255 petition when the petitioner is in custody under the sentence of a federal court.

II. RELEVANT BACKGROUND TO THE PENDING MOTION

On August 14, 2013, a federal grand jury returned a Fourth Superseding Indictment, charging Petitioner in Count 1 with conspiracy to possess and distribute five kilograms or more in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846; and in Count 2 with conducting an unlicensed money transmitting business in violation of 18 U.S.C. §§ 1960(a), (b)(1)(C), and 2. (See ECF Nos. 611, 639.) On September 13, 2013, the Government filed an Information notifying Petitioner that based on his prior drug conviction, he was subject to an increased statutory minimum penalty of 20 years to life. (See ECF Nos. 679, 986 ¶ 24.) On January 13, 2014, pursuant to a written plea agreement, Petitioner pleaded guilty to Count 1 and 2. (See ECF Nos. 819, 845.) On June 26, 2014, Petitioner was sentenced to 180 months imprisonment as to Count 1 and 60 months imprisonment as to Count 2 - to be run concurrently. (ECF No. 1128.) Petitioner did not file a direct appeal. On March 9, 2015, Petitioner, through his counsel, filed a Motion for Sentence Reduction. (See ECF No. 1268.) On June 1, 2015, Petitioner filed the instant Motion to Vacate. (ECF No. 1301.) On June 29, 2015, the court issued an Order granting Petitioner’s Motion for Sentence Reduction and reduced his sentence to 145 months imprisonment on Count 1. (See ECF No. 1329.) On August 7, 2015, the Government filed a Response in Opposition (ECF No. 1372) to Petitioner’s Motion to Vacate and a Motion for Summary Judgment (ECF No. 1373). On August 20, 2015, Petitioner filed an additional Response. (ECF No. 1379.)

III. LEGAL STANDARD

Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248-49 (1986). In ruling on a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment with mere allegations or denial of the movant’s pleading, but instead must “set forth specific facts” demonstrating a genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).

A prisoner in federal custody under sentence of a federal court may petition the court that imposed the sentence to vacate, set aside or correct the sentence. See 28 U.S.C. § 2255. The prisoner may be entitled to relief upon a showing: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; and (4) that the sentence is otherwise subject to collateral attack. Id. Additionally, a claim of ineffective assistance of counsel may properly be raised in a § 2255 motion. See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (citation omitted).

To succeed on a claim of ineffective assistance of counsel, a petitioner must show that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance was prejudicial. See United States v. Brown, 292 F. App’x 250, 251-52 (4th Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). “Under the first prong of Strickland, a petitioner must demonstrate that counsel's performance ‘fell below an objective standard of reasonableness’ under prevailing professional norms.” Id. (citing Strickland, 466 U.S. at 688). A court’s scrutiny of counsel's performance is highly deferential. See Strickland, 466 U.S. at 689-90 (recognizing that “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment”).

“To satisfy the second prong of Strickland, a petitioner must show ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’” Brown, 292 F. App’x at 252 (citing Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

IV. ANALYSIS

In his Motion to Vacate, Petitioner maintains that (1) his counsel was ineffective during the negotiation of his plea agreement and that his plea agreement is void, and that (2) the court abused its discretion when it accepted this plea. (See ECF No. 1301-1 at 8-9, 10, 15.)

1. Ineffective Assistance of Counsel: Plea Agreement

Petitioner maintains that his plea agreement is void because it lacked the elements of offer and acceptance, mutual assent, and consideration. (See ECF No. 1301-1 at 4, 9, 10 (adding that “no part of the plea was negotiated, knowingly entered into or voluntary”).) Specifically, Petitioner argues that “[t]his was in fact a take or leave plea contract that is nothing short of adhesive and coercive given the fact[] that [he] did not receive the document until 15 minutes prior to the judge coming in to the court . . . .” (Id. at 8, 12 (emphasizing that: “Let it not be lost on this Court or surprising that [he] said he was satisfied with counsel; when coached by counsel, right before taking the plea colloquy, but was told just to ‘answer the question by yes and wait till after for any questions to me, [sic] we don’t want to upset this Judge’”).) Finally, Petitioner adds that what the Government “g[ave] is in most cases, as here, an operation of law, and is owed and therefore cannot be consideration for the purposes of this transaction.” (Id. at 15.) The court disagrees.

Upon review, the court finds that Petitioner’s claims regarding his plea agreement are without merit. “A plea agreement is ‘essentially a contract between an accused and the government’ and is therefore subject to interpretation under the principles of contract law.” United States v. Davis, 689 F.3d 349, 353 (4th Cir. 2012) (published) (quoting United States v. Lewis, 633 F.3d 262, 269 (4th Cir. 2011)). “’[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.’” Id. (quoting Santobello v. New York, 404 U.S. 257, 262 (1971)). “And while ‘each party should receive the benefit of its bargain, ’ the government is bound only by the promises it actually made to induce the defendant's plea.” Id. (quoting United States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009)). Importantly, the fact that the government possesses tremendous bargaining power in the negotiation of plea agreements does not in and of itself make a plea agreement unenforceable. See United States v. Williams, 510 F.3d 416, 423 (3d Cir. 2007) (stating that the “government always has leverage, and yet [courts] routinely enforce plea agreements in which defendants waive important constitutional rights, such as the right to appeal”). Petitioner’s plea agreement indicates that the Government agreed, inter alia, to make a “non-binding recommendation, ” but did not promise a particular sentence. Cf. Davis, 689 F.3d at 353 (discussing similar plea). The plea agreement states that:

Provided [Petitioner] cooperates pursuant to the provisions of this Plea Agreement, and that cooperation is deemed by the Government as providing substantial assistance in the investigation or prosecution of another person who has committed an offense, the Government agrees to, at the Defendant’s selection, EITHER:
(1) move the Court for a downward departure or reduction of sentence pursuant to the United States Sentencing Guidelines § 5K1.1, Title 18, United States Code, § 3553(e) or Federal Rule of Criminal Procedure 35(b). [Petitioner] understands that any such motion by the Government is not binding upon the Court, and should the Court sentence [Petitioner] within the Guidelines, to the maximum penalty prescribed by law or refuse the sentence imposed, [Petitioner] will have no right to withdraw his plea; OR,
(2) withdraw at sentencing the Information previously filed pursuant to 21 U.S.C. § 851 seeking an enhanced minimum penalty based on one prior felony drug conviction.

(See ECF No. 819 at 8.)[1] Petitioner’s plea agreement constitutes a bargained-for exchange in which he agreed to plead guilty, assist the Government, and relinquish certain rights to appeal his sentence - thereby conserving the Government valuable resources. See United States v. Erwin, 765 F.3d 219, 230 (3d Cir. 2014) (discussing a classic bargained-for exchange). In return, at Petitioner’s sentencing, ...


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