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Simon v. United States

United States District Court, D. South Carolina, Florence Division

September 19, 2017

Jovan Cornelius Simon, Petitioner,
United States of America, Respondent. Civ. No. 4:16-cv-03282-RBH


          R. Bryan Harwell, United States District Judge

         This 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.


         On September 25, 2012, Petitioner and a codefendant[1] 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.

         Petitioner proceeded to a jury trial and was found guilty on both counts.[2] 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.[3] 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.

         The Court sentenced Petitioner to concurrent terms of 137 months' imprisonment on Count One and 120 months' imprisonment on Count Two.[4] 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).

         On September 30, 2016, [5] 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 & 285.

         Legal Standard

         Prisoners 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 omitted).

         The 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).

         “When 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 omitted).


         Petitioner 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.

         “[T]here 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 necessary.” Id.

         Applying the above law, the Court will address Petitioner's claims.[6]

         I. Ground One

         Petitioner 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 pp. 1-2.

         Petitioner 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.

         Hicks 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.[7]

         Additionally, 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.

         II. Ground Two

         Petitioner 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.

         Petitioner 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.

         Moreover, “[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, [8]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.

         III. ...

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