United States District Court, D. South Carolina, Anderson/Greenwood Division
ORDER AND OPINION
MICHELLE CHILDS, District Judge.
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. Â§ 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).
court has jurisdiction over this matter pursuant to 28 U.S.C.
Â§ 2255, which states that a federal district court has
jurisdiction to entertain a Â§ 2255 petition when the
petitioner is in custody under the sentence of a federal
RELEVANT BACKGROUND TO THE PENDING MOTION
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. Â§Â§ 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. Â§Â§ 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 Â¶ 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.)
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.)
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).
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. Â§ 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 Â§ 2255 motion. See
United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999) (citation omitted).
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.Appx. 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
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.Appx.
at 252 (citing Strickland, 466 U.S. at 694). "A
reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id.
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.)
Ineffective Assistance of Counsel: Plea Agreement
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.
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, ITHER:
(1) move the Court for a downward departure or reduction of
sentence pursuant to the United States Sentencing Guidelines
Â§ 5K1.1, Title 18, United States Code, Â§ 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. Â§ 851 seeking an enhanced minimum
penalty based on one prior felony drug conviction.
(See ECF No. 819 at 8.) 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, the ...