United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE.
matter is before the court on petitioner Julius
Nesbitt’s (“Nesbitt”) motion to vacate, set
aside, or correct his federal sentence pursuant to 28 U.S.C.
§ 2255. ECF No. 285. The government filed a motion to
dismiss, or in the alternative, for summary judgment. ECF No.
319. Nesbitt has also filed a number of related motions to
which the government has not responded: (i) motion to expand
the record, ECF No. 295; (ii) motion to amend the initial
motion to vacate, set aside, or correct, ECF No. 299; (iii)
motion to request District Court Judge to recuse himself, ECF
No. 320; and (iv) motion to appoint counsel and schedule
evidentiary hearing, ECF No. 331. For the reasons set forth
below, the court: (i) grants in part and denies in part the
government’s motion to dismiss, or in the alternative,
for summary judgment; (ii) denies in part Nesbitt’s
§ 2255 petition as to all but one claim; and (iii)
grants Nesbitt’s motion to appoint counsel with respect
to the sole remaining § 2255 claim.
was arrested in Indiana by the U.S. Marshals Service on
January 8, 2008. Nesbitt was first indicted in the Southern
District of Indiana on federal counterfeiting charges, to
which Nesbitt pleaded guilty on August 21, 2008 and was
sentenced to time served in Indiana on February 26, 2009.
Following the Indiana indictment, on November 12, 2008,
Nesbitt was named in a six-count indictment in the United
States District Court for the District of South Carolina.
Count 1 alleged violations of 21 U.S.C. §§ 841 and
846-Conspiracy to Possess with Intent to Distribute
Oxycodone. Counts 2 and 3 alleged a violation of 21 U.S.C.
§ 841-Possession with Intent to Distribute Oxycodone.
Count 4 alleged a violation of 18 U.S.C. §
924-Possession of a Firearm in Furtherance of a Drug
Trafficking Crime. Count 5 alleged a violation of 18 U.S.C.
§§ 922 and 924- Possession of a Firearm by a
Convicted Felon. Count 6 alleged a violation of 14 U.S.C.
§ 88-False Distress Signal to U.S. Coast Guard.
Nesbitt’s January 2008 arrest and before either
indictment, defense counsel and the government began
negotiations in an effort to eventually resolve any potential
South Carolina charges alongside any charges filed in
Indiana. On March 14, 2008, Nesbitt entered into a Proffer
Agreement with the government, pursuant to which Nesbitt
agreed to provide the government with “fully truthful
and forthright” information, and the government agreed
“that any self-incriminating statements made and other
information provided by [Nesbitt] during this Proffer”
would not be used against him in any civil or criminal
proceedings or at sentencing, “unless there is a breach
of this Agreement.” ECF No. 167-2, Proffer Agreement
2-3. The Proffer Agreement specifically states that the
government “does not agree to . . . enter into a plea
agreement” with Nesbitt, and “[t]he [g]overnment
makes no representation about the likelihood that any such
agreement will be reached in connection with this
Proffer.” Id. at 1. The Proffer Agreement also
contained an integration clause and provided that it could
not be modified except by a writing signed by all parties.
Id. at 3-4.
participated in two proffers, one on May 21, 2008 and the
other on July 17, 2008. During this period, Nesbitt’s
counsel and the government continued plea negotiations, but
ultimately failed to reach any formal agreement. See
ECF No. 276, Resentencing Hr’g Tr. 29:6-22 (describing
emails from government to Nesbitt’s counsel indicating
a plan to enter into plea agreement). Nesbitt was eventually
indicted in South Carolina, and on August 22, 2010, the
government moved to hold Nesbitt in breach of the Proffer
Agreement based on certain false statements and material
omissions made during his May 21, 2008 proffer. On August 25,
2010, the court found that Nesbitt breached his Proffer
Agreement, and entered an order detailing this finding on
September 14, 2010. On August 26, 2010, after a four day jury
trial, Nesbitt was convicted on Counts 1, 2, 3, 5, and 6 in
the South Carolina indictment.
November 30, 2010, Nesbitt was sentenced to 151 months
imprisonment, followed by 36 months of supervised release. On
appeal, the Fourth Circuit affirmed Nesbitt’s
convictions, but vacated his sentence, finding that this
court failed to provide a sufficient explanation for the
sentence. On remand, this court held a resentencing hearing,
and on December 19, 2013, the court resentenced Nesbitt to
151 months imprisonment, followed by 36 months of supervised
release. Nesbitt again appealed, and the Fourth Circuit
affirmed this court’s resentencing on October 16, 2014.
filed a motion to vacate his sentence under 28 U.S.C. §
2255 on November 24, 2014. He then filed a motion to expand
the record on December 22, 2014, and a motion to amend his
motion to vacate on January 5, 2015. The government then
filed a motion to dismiss Nesbitt’s motion to vacate on
March 9, 2015, and Nesbitt filed a response to the
government’s motion on March 31, 2015. The same day,
Nesbitt also filed a motion for the District Judge to recuse
himself. On May 29, 2015, Nesbitt filed a motion to appoint
counsel and schedule an evidentiary hearing in connection
with his motion to vacate under § 2255. The government
has not seen fit to respond to any of Nesbitt’s
numerous ancillary motions. These matters are now ripe for
the court’s review.
STANDARD OF REVIEW
filed the instant motions pro se. Federal district courts are
charged with liberally construing petitions filed by pro se
litigants to allow the development of a potentially
meritorious case. See Hughes v. Rowe, 449 U.S. 5,
9-10 (1980). Pro se petitions are therefore held to a less
stringent standard than those drafted by attorneys. See
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
proceeds under 28 U.S.C. § 2255, which provides in
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a).
government has filed a motion for summary judgment. Summary
judgment shall be granted if the movant shows there is no
genuine issue of material fact and that it is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). “Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). “[S]ummary
judgment will not lie if the dispute about a material fact is
‘genuine, ’ that is, if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. At the summary judgment stage, the
court must view the evidence in the light most favorable to
the non-moving party and draw all justifiable inferences in
its favor. Id. at 255.
the merits of Nesbitt’s motion to vacate under §
2255 disposes of many of the issues presented in
Nesbitt’s numerous ancillary motions. The court will
begin by addressing Nesbitt’s motion for the court to
recuse, since granting this motion would relieve the court of
the task of addressing any other issues.
Motion for Recusal
argues that recusal is proper under 28 U.S.C. § 455(a),
which provides that “[a]ny justice, judge, or
magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned.” 28 U.S.C. § 455(a).
Nesbitt points to two prior rulings in this case, which he
contends were so lacking in legal support and adverse to his
interest that they would “cause a person with knowledge
of the relevant facts reasonably to question the impartiality
of this Judge and, in fact, believe in the Judge’s
actual bias against [him].” ECF No. 320,
Pet’r’s Mot. to Recuse 4-5. Specifically, Nesbitt
contends that this court abused its discretion at a status
conference following the resolution of Nesbitt’s
initial appeal by stating that it lacked jurisdiction to
resentence Nesbitt until his petition for certiorari was
resolved. Id. at 2. Nesbitt further contends that
this court ignored established Fourth Circuit precedent by
denying his motion to correct the Amended Judgment where
there was an alleged discrepancy between the oral judgment
and written judgment. Id. at 4; see also
ECF Nos. 311, 312 (Nesbitt’s motion to amend/correct
and this court’s order denying that
latter argument fails from the outset. The Fourth Circuit
affirmed this court’s denial of Nesbitt’s motion
to correct the Amended Judgment in a July 1, 2015 opinion.
ECF Nos. 333, 338. Thus, there is no indication that the
court’s denial of that motion was legally erroneous.
even assuming the court’s rulings were erroneous,
they do not provide adequate grounds for recusal. The Supreme
Court has explained that “judicial rulings alone almost
never constitute a valid basis for a bias or partiality
motion” under § 455(a). Liteky v. United
States, 510 U.S. 540, 555 (1994). This is because that
section’s concern with “partiality” is only
implicated by “judicial predispositions that go beyond
what is normal and acceptable.” Id. at 552. A
judicial predisposition may be inappropriate “either
because it is undeserved, or because it rests upon knowledge
that the subject ought not to possess . . ., or because it is
excessive in degree . . . .” Id. at 550.
Courts rulings, in and of themselves, “cannot possibly
show reliance upon an extrajudicial source; and can only in
the rarest circumstances evidence the degree of favoritism or
antagonism required  when no extrajudicial source is
involved.” Id. at 555.
case, Nesbitt effectively contends that the court appears
biased against him due to the fact that the court allegedly
misapplied the law in a manner that is detrimental to his
interests. Pt’r’s Mot. to Recuse 4-5. Nesbitt
points to nothing indicating that these adverse rulings were
based on extrajudicial information. Nor do they reveal a
“deep-seated and unequivocal antagonism that would
render fair judgment impossible.” Liteky, 510
U.S. at 556. To infer such antagonism from the allegation
that the court’s adverse ruling was in error would
effectively require recusal every time a court made any
decision. This result is absurd. The Supreme Court recognized
as much in Liteky when it stated that judicial
rulings are “[a]lmost invariably . . . proper grounds
for appeal, not recusal.” Id. at 555.
Therefore, the court denies Nesbitt’s motion for
Motion to Amend
turning to the merits of the case, the court also addresses
Nesbitt’s motion to amend his original motion to vacate
under § 2255. ECF No. 299, Pet’r’s Mot. to
Amend. Nesbitt’s motion to amend simply seeks to add
three additional claims to his original motion to vacate.
Because the government has not responded to this motion, the
court will grant Nesbitt’s motion to amend and will
evaluate the additional claims described by that motion.
resolved these preliminary issues, the court now addresses
Nesbitt’s numerous claims for relief under § 2255.
Motion to Vacate Under § 2255 and Motion to Dismiss
Breach of Agreement to Send Information or Offer Plea
portion of Nesbitt’s claims depend, in one way or
another, on his contention that the government breached an
oral agreement to send an Information to Indiana resolving
his South Carolina charges in exchange for him signing the
Proffer Agreement. See Attach. to
Pet’r’s Mot. 1-6. Two of Nesbitt’s
government misconduct claims directly attack the legitimacy
of the Proffer Agreement, arguing that it was induced by the
government’s promises under the alleged oral agreement,
which were never fulfilled. Id. at 1-2. Nesbitt also
argues that the court deprived him of due process by failing
to hold an evidentiary hearing on his claim that the
government breached the oral agreement. Id. at 1.
Nesbitt further argues that his pretrial and trial counsel
were inadequate for failing to challenge the use of
information obtained through his proffer statement, and that
his appellate counsel was inadequate for failing to challenge
the court’s rulings regarding the Proffer Agreement.
Id. at 2-6.
interpretation of plea agreements is guided by contract law,
and parties to the agreement should receive the benefit of
their bargain.” United States v. McQueen, 108
F.3d 64, 66 (4th Cir. 1997); United States v.
Martin, 25 F.3d 211, 216-17 (4th Cir. 1994)
(“Although plea agreements between the government and a
defendant are unique and call for special due process
considerations, the judicial interpretation of plea
agreements is largely governed by the law of
contracts.”). This rule also applies to proffer
agreements. See United States v. Pielago, 135 F.3d
703, 709 (11th Cir. 1998) (“The construction of proffer
agreements, like plea agreements, is governed generally by
the principles of contract law, as we have adapted it for the
purposes of criminal law.”). The court recognizes that
the purported oral agreement in this case is alleged to be
neither a plea agreement nor a proffer agreement, but an
agreement to offer a plea agreement in exchange for
the signing of a proffer agreement. Despite this
distinction, the court sees no reason to depart from the
general rule that such agreements are governed by the general
principles of contract law.
of contract law’s fundamental doctrines is that there
can be no agreement unless there is a ‘meeting of the
minds.’” United States v. White, 628 F.
App’x 848, 851- 52 (4th Cir. 2015) (quoting
Charbonnages de France v. Smith, 597 F.2d 406, 414
(4th Cir. 1979)). This “meeting of the minds”
requires that the parties have mutually assented to the
essential elements of the bargain. Id. at 852.
“Where ‘substantial confusion’ calls into
question whether there has been such a meeting of the minds
over a plea bargain, there is no valid agreement to be
Nesbitt concedes there was no formal plea agreement, but
argues there was an “oral agreement to send an
Information to Indiana” in exchange for Nesbitt signing
the Proffer Agreement. Resentencing Hr’g Tr. 32:5-7,
33:14-21; see also Pet’r’s
Response 5 (disputing the government’s characterization
of his breach of agreement argument and stating that not all
agreements are plea agreements). There is certainly no
indication of any such agreement in the Proffer Agreement
itself. Proffer Agreement 1-4. Nesbitt has identified
excerpts from a series of emails sent by the
government’s counsel in an effort to show that the
purported agreement existed. Resentencing Hr’g Tr.
29:4-22; ECF No. 249, Attach. to Objs. to Use of Existing
Presentence Investigation Report During Resentencing 10-11.
Nesbitt outlined this argument at his resentencing hearing:
On May 14, 2008, [the government’s counsel] stated:
“I should be sending you an Information soon, which
hopefully Nesbitt will be able to plead guilty to along with
the counterfeiting charges up [in Indiana].” This
agreement was made through my attorney in Indiana to me from
[the government’s counsel] that if I signed the
[Proffer] Agreement, this would happen.
Another e-mail from [the government’s counsel] to
[defense counsel]. On July 16, 2008. “I know it's
been said before, but I am close to sending you the
Information and Plea Agreement.” Before I signed the
proffer and before I debriefed.
Another e-mail from [the government’s counsel] to
[defense counsel] July 29th, 2008. “My intention is not
to wipe out any help he gets for his assistance in the
Indiana case. I don't have any objections at this time to
the 5K reduction applying to my charges as well if
Hr’g Tr. 29:4-22.
these excerpts do not evince a final agreement created
through “mutual assent” but rather show only
preliminary discussions and the possibility of a future
agreement. The first email states that
“hopefully Nesbitt will be able to plead
guilty” to the charges in the forthcoming information,
indicating that the plea was not a foregone conclusion. The
second email, which notably post-dates Nesbitt’s first
proffer interview, simply references the same information and
clearly indicates that the plea agreement had yet to be
offered, much less agreed upon by the parties. Finally, the
third email, which post-dates both of Nesbitt’s proffer
interviews, references a potential plea arrangement and
states that the government has no “objections at
this time, ” implying that the government retained
the authority to decline such an agreement.
attempts to avoid this interpretation of the emails by
arguing that the government never agreed to a particular plea
arrangement, but simply agreed to offer a plea agreement.
However, the emails do not provide any indication that the
plea negotiations were being conducted pursuant to some prior
oral agreement, and they certainly do not suggest that the
government was obligated to provide a plea offer by any such
agreement. The emails simply reflect plea negotiations.
Evidence that plea negotiations occurred cannot, in and of
itself, constitute evidence that plea negotiations, much less
a plea offer, were required by some ancillary oral
agreement. The logic underlying such a finding is simply not
reasonable; the fact that a party takes some action, or
prepares to take some action, does not mean that such action
was contractually obligated. To the extent the emails provide
any indication of the forces motivating the
government’s plea negotiations, they suggest that the
government was guided only by its own “intentions,
” not its obligations. Id. at 29:19-20.
Therefore, the court finds that Nesbitt has failed to present
evidence of any alleged oral agreement.
all of Nesbitt’s proffer related claims in his motion
to vacate must fail. Grounds Two A and Two B, which directly
allege that the government failed to fulfill its obligations
under the oral agreement fail for lack of factual support as
Three B, Three E, and Three F all allege ineffective
assistance of counsel based on defense counsel’s
failure to challenge the indictment, trial evidence, and
sentencing guideline calculations, which were all based on
information gained through the Proffer Agreement. Similarly,
Ground Three G alleges that Nesbitt’s appellate counsel
was inadequate for failing to challenge the court’s
rulings regarding the Proffer Agreement and failure to
conduct an evidentiary hearing on the issue. Ineffective
assistance of counsel claims require the petitioner to
“show that [his] attorney[’s] performance fell
below an objective standard of reasonableness and that [he]
suffered prejudice as a result.” United States v.
Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Because the court finds no factual support for
Nesbitt’s contention that the Proffer Agreement was not
involuntarily or unknowingly made, the court finds that any
challenges to the indictment, trial evidence, guidelines
calculations, or related court rulings relying on that
contention would have failed. Thus, Nesbitt cannot show that
there is a reasonable probability that he was prejudiced by
his counsel’s failure to mount such attacks, and his
counsel’s decision to forego such a strategy was likely
One alleges that the court denied Nesbitt due process by
failing to hold an evidentiary hearing to determine whether
the proffer statement was knowingly and voluntarily given,
and whether the information used to calculate the guidelines
range was the result of the government’s breach of
agreement. The Fourth Circuit “has never held that an
evidentiary hearing is required to resolve disputed matters
at sentencing. Only when the reliability of evidence is an
issue has [the Fourth Circuit] held that an evidentiary
hearing is necessary.” United States v.
Jackson, 155 F.3d 562 (4th Cir. 1998). Even when the
court does hold an evidentiary hearing to resolve sentencing
issues, the hearing need not take any specific form. See
United States v. Reyna, 611 F. App’x 124, 126 (4th
Cir. 2015) (“While ‘the court must ensure that
the parties have an adequate opportunity to present relevant
information [on a disputed issue], ’ there is no
affirmative requirement that the court allow live
testimony.” (quoting U.S. Sentencing Guidelines
Manual § 6A1.3, cmt. (2013))).
Nesbitt submitted objections outlining his arguments prior to
the resentencing hearing, ECF No. 249, and took the
opportunity to argue his position at the hearing itself.
Resentencing Hr’g Tr. 25:15-35:5. In fact, the court
accepted that the emails Nesbitt relied on were valid, but
simply found them insufficient to support his legal claim.
Id. at 34:2-15. Thus, the court finds that Nesbitt
had ample opportunity to present his arguments. Moreover,
Nesbitt’s allegation that the proffer statement was not
knowing and voluntary does not turn on the reliability of the
evidence, so no evidentiary hearing was necessary. Finally,
the court accepted the legitimacy of the emails in finding
that the proffer statement was knowing and voluntary.
Id. at 34:6-12 (relying on dates of the emails to
find no meeting of the minds). Thus, any error in not
ordering an evidentiary hearing was harmless. United
States v. Dutton, 92 F.3d 1183 (4th Cir. 1996) (finding
that “any error regarding the denial of the continuance