United States District Court, D. South Carolina, Florence Division
Bryan Harwell, United States District Judge
matter is before the Court on Petitioner Jovan Cornelius
Simon's pro se motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255.
September 25, 2012, Petitioner and a
codefendant were charged in a single count
indictment as being felons in possession of firearms and
ammunition, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), and (e). See ECF No. 2. Petitioner was
arrested on May 9, 2013, and on August 27, 2013, he was
charged in a two-count superseding indictment with (1)
conspiracy to distribute and possess with intent to
distribute cocaine, cocaine base, and marijuana (“Count
One”), in violation of 18 U.S.C. §§
841(a)(1), (b)(1)(C), (b)(1)(D), and 846, and (2) being a
felon in possession of firearms and ammunition (“Count
Two”). See ECF Nos. 52 & 101.
Petitioner's charges stemmed from two separate traffic
stops, Count Two from a stop on February 28, 2012, and Count
One from a stop on May 9, 2013. Petitioner's trial
counsel, Ashley Nance, filed motions to suppress the evidence
from both stops; the Court denied the motions after holding
evidentiary hearings on them. See ECF Nos. 90, 96,
109, 133, 144. Trial counsel also filed a motion to sever
Counts One and Two, which the Court denied. See ECF
Nos. 113, 118, & 119. Additionally, during the pretrial
proceedings, the Government made several plea offers, all of
which Petitioner rejected. See ECF Nos. 264-2,
264-6, & 264-8.
proceeded to a jury trial and was found guilty on both
counts. See ECF Nos. 149, 151, &
158. The U.S. Probation Office prepared a presentence
investigation report (“PSR”) that calculated
Petitioner's advisory sentencing guideline range as 121
to 151 months' imprisonment. See PSR [ECF No.
210] at ¶ 102. Regarding Count One, the PSR determined
Petitioner was accountable for 3.5 grams of powder cocaine
and 41.8 grams of crack cocaine. See PSR at
¶¶ 9, 10, 11, & 17. Trial counsel filed
numerous objections to the PSR, including a challenge to the
crack cocaine weight attributed to Petitioner. See
ECF No. 264-13. After considering trial counsel's
objections and arguments at sentencing, the Court reduced the
amount of crack cocaine attributed to Petitioner from 41.8
grams to 30.8 grams. See ECF No. 238 at pp. 26-33.
This reduction resulted in Petitioner's advisory
guideline range being lowered to 110 to 137 months'
imprisonment. Id. at p. 35.
Court sentenced Petitioner to concurrent terms of 137
months' imprisonment on Count One and 120 months'
imprisonment on Count Two. See ECF Nos. 209 &
211. Judgment was entered on April 25, 2014, and Petitioner
filed a notice of appeal. See ECF Nos. 211 &
220. Petitioner's appellate counsel (Andrew Mackenzie)
filed a brief pursuant to pursuant to Anders v.
California, 386 U.S. 738 (1967), and Petitioner filed a
pro se supplemental brief. See ECF No. 244 at p. 2.
On February 2, 2015, the Fourth Circuit issued an opinion
affirming the Court's judgment. See ECF No. 244;
United States v. Simon, 600 F. App'x 89 (4th
Cir. 2015). The Fourth Circuit denied Petitioner's
petition for rehearing and rehearing en banc, and it issued
the mandate on March 31, 2015. See ECF Nos. 247
& 248. The United States Supreme Court denied
Petitioner's petition for a writ of certiorari on October
5, 2015. See Simon v. United States, 136 S.Ct. 169,
2015 WL 4078259 (2015).
September 30, 2016,  Petitioner filed the instant pro se
§ 2255 motion with accompanying legal memoranda.
See ECF No. 257 at p. 13. Both trial counsel and
appellate counsel filed affidavits addressing their
representation of Petitioner. See ECF Nos. 264 &
274. The Government (“Respondent”) filed a
response in opposition and a motion for summary judgment.
See ECF Nos. 280 & 281. Petitioner filed a reply
to the response, as well as a response in opposition to the
motion for summary judgment. See ECF Nos. 284 &
in federal custody may attack the validity of their sentences
pursuant to 28 U.S.C. § 2255. For a court to vacate, set
aside, or correct a sentence under § 2255, a petitioner
must prove one of the following occurred: (1) a 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).
“The writ of habeas corpus and its federal counterpart,
28 U.S.C. § 2255, will not be allowed to do service for
an appeal. For this reason, nonconstitutional claims that
could have been raised on appeal, but were not, may not be
asserted in collateral proceedings.” Stone v.
Powell, 428 U.S. 465, 478 n.10 (1976) (internal
quotation marks and citation omitted). “Even those
nonconstitutional claims that could not have been asserted on
direct appeal can be raised on collateral review only if the
alleged error constituted a fundamental defect which
inherently results in a complete miscarriage of
justice[.]” Id. (internal quotation marks
district court need not hold an evidentiary hearing on a
§ 2255 motion if “the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b);
see United States v. Thomas, 627 F.3d 534, 538 (4th
Cir. 2010). The determination of whether to hold an
evidentiary hearing ordinarily is left to the sound
discretion of the district court. Raines v. United
States, 423 F.2d 526, 530 (4th Cir. 1970).
the district court denies § 2255 relief without an
evidentiary hearing, the nature of the court's ruling is
akin to a ruling on a motion for summary judgment.”
United States v. Poindexter, 492 F.3d 263, 267 (4th
Cir. 2007). “The court shall grant summary judgment 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); see
generally Rule 12 of the Rules Governing Section 2255
Cases (“The Federal Rules of Civil Procedure . . ., to
the extent that they are not inconsistent with any statutory
provisions or these rules, may be applied to a proceeding
under these rules.”). “A party asserting that a
fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in
the record . . .; or (B) showing that the materials cited do
not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence
to support the fact.” Fed.R.Civ.P. 56(c)(1). “The
evidence must be viewed in the light most favorable to the
non-moving party, with all reasonable inferences drawn in
that party's favor. The court therefore cannot weigh the
evidence or make credibility determinations.”
Reyazuddin v. Montgomery Cty., 789 F.3d 407, 413
(4th Cir. 2015) (internal citation and quotation marks
asserts seven grounds for relief in his § 2255 motion,
all of which allege ineffective assistance of counsel. The
Court must review claims of ineffective assistance of counsel
under the two-part test enunciated in Strickland v.
Washington, 466 U.S. 668 (1984). First, a petitioner
must show counsel's performance was deficient, meaning it
“fell below an objective standard of
reasonableness.” Id. at 687-88. Second, the
petitioner must show prejudice, meaning “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694.
is no reason for a court deciding an ineffective assistance
claim to approach the inquiry in the same order or even to
address both components of the inquiry if the defendant makes
an insufficient showing on one.” Id. at 697.
“In particular, a court need not determine whether
counsel's performance was deficient before examining the
prejudice suffered by the defendant as a result of the
alleged deficiencies.” Id. Thus, “[w]hen
ineffective assistance claims are based on the failure to
raise, develop, or properly present an underlying claim, an
examination of the merits of the underlying claim will
frequently be dispositive of the ineffective assistance
claim.” Orbe v. True, 233 F.Supp.2d 749, 765
(E.D. Va. 2002), aff'd, 82 F. App'x 802 (4th
Cir. 2003). “If the underlying claim is meritless,
counsel's failure to pursue it can be neither
unreasonable nor prejudicial, and no further inquiry is
the above law, the Court will address Petitioner's
claims trial counsel was ineffective “by failing to
present an independ[e]nt challenge to the search and seizure
of the firearms evidence based on U.S. Supreme Court
precedent in Arizona v. Hicks, 480 U.S. 321 (1987)
and its line of cases.” ECF No. 257 at p.4; ECF No.
257-2 at p. 2. Petitioner's claim relates to the firearms
and ammunition that police recovered from his vehicle during
the February 28, 2012 search. See ECF No. 257-1 at
cannot show Strickland prejudice because his claim
fails on the merits. Arizona v. Hicks involved the
plain view exception to the warrant requirement, specifically
“whether this ‘plain view' doctrine may be
invoked when the police have less than probable cause to
believe that the item in question is evidence of a crime or
is contraband.” 480 U.S. at 323. In Hicks, the
Supreme Court held that a police officer violated the
defendant's Fourth Amendment rights when the officer,
even though legally in the defendant's apartment in
response to a shooting that had just occurred, picked up some
stereo components without a warrant to see their serial
numbers and determine whether they had been stolen.
Id. at 323-26.
is inapplicable to Petitioner's case because, as
Respondent points out, the warrantless search of
Petitioner's car relied on the automobile exception to
the warrant requirement-not the plain view exception. See
United States v. Patiutka, 804 F.3d 684, 690 (4th Cir.
2015) (“Police officers do not need a warrant to search
an automobile if they have probable cause to believe it
contains evidence of criminal activity. . . . Under the
automobile exception, police officers may search for evidence
of any crime, not just of the offense that provided
the basis for the arrest.”). In fact, the Court denied
Petitioner's motion to suppress the fruits of the
February 28, 2012 search-filed by trial counsel-on this very
basis. The Court ruled the police officer's
“smelling the marijuana . . . gave probable cause to
search the vehicle based on [the] automobile
exception.” ECF No. 141 at pp. 102-04
(emphasis added). The Fourth Circuit affirmed the Court's
ruling, stating that “an officer who smells marijuana
upon approaching a vehicle during a lawful traffic stop has
probable cause to search those parts of the vehicle where
that marijuana may be contained.” Simon, 600
F. App'x at 91 (citing United States v. Carter,
300 F.3d 415, 422 (4th Cir. 2002)). Trial counsel cannot be
deemed ineffective for failing to make a meritless argument
based on Hicks.
trial counsel was not deficient because as noted above, he
did indeed file a motion to suppress the firearms evidence
recovered during the February 28, 2012 search. See
ECF No. 90. Trial counsel cited and argued the
applicable law in a thirteen-page
memorandum as well at the hearing on the motion. See
id.; ECF No. 141 at pp. 94-98. The Court denies relief
as to Ground One.
asserts trial counsel was ineffective “by failing to
challenge Count One of the superseding indictment based on a
selective prosecution claim pursuant to Supreme Court
precedent in United States v. Armstrong, 517 U.S.
456 (1996) and its line of cases.” ECF No. 257-2 at p.
3. Petitioner argues “a reasonably competent defense
attorney would have recognized” that the
Government's decision to bring the additional drug
conspiracy charge amounted to selective prosecution because
it resulted from Petitioner's “exercise of his
legal right to challenge the initial firearms count of the
original indictment.” Id. at p. 4.
cannot show Strickland prejudice because his claim
fails on the merits. In Armstrong, the Supreme Court
“consider[ed] the showing necessary for a defendant to
be entitled to discovery on a claim that the prosecuting
attorney singled him out for prosecution on the basis of his
race.” 517 U.S. at 458. The Supreme Court held a
defendant must “show that the Government declined to
prosecute similarly situated suspects of other races.”
Id. Here, Petitioner has not made such a showing.
“[i]n the pretrial setting, . . . the Supreme Court has
allowed prosecutors to threaten criminal defendants with
harsher prosecution during plea negotiations and to carry out
those threats if the defendants refuse to accept the
prosecution's plea offers.” United States v.
Williams, 47 F.3d 658, 660 (4th Cir. 1995) (citing
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)).
“If a prosecutor brings additional charges after a
defendant refuses to accept a plea bargain, a court cannot
presume that the additional charges are an impermissible
penalty for the defendant's refusal.” Id.
at 661 (citing United States v. Goodwin, 457 U.S.
368, 378-79 (1982)). Here, as thoroughly detailed in
Respondent's brief, there is no evidence that the
Government engaged in prosecutorial vindictiveness by filing
the superseding indictment after Petitioner had rejected the
plea offer regarding the original indictment. See
Id. at 662 (recognizing “Bordenkircher
and Goodwin have made clear that a prosecutor, in
the context of plea negotiations, can threaten to bring a
more severe indictment against a defendant to pressure him
into pleading guilty”). Thus, trial counsel was not
ineffective for failing to argue Count One of the superseding
indictment amounted to selective and/or vindictive
prosecution. The Court denies relief as to Ground Two.