United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge.
Bell (“Bell”), a prisoner proceeding pro
se, seeks to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255.
FACTUAL AND PROCEDURAL BACKGROUND
indictment filed on July 17, 2008, Bell was charged in the
United States District Court for the District of South
Carolina on four drug-related counts. ECF No. 3. Count 1
charged Bell with conspiring to distribute and possess with
intent to distribute 50 grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
and 846. Id. Counts 6, 7, and 8 each charged Bell
with distributing and possessing with intent to distribute a
quantity of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C). Id.
August 6, 2009, Bell signed a plea agreement and entered a
plea of guilty to Count 1 of the Indictment. ECF No. 244. By
judgment entered March 10, 2010, the court sentenced Bell to
380 months imprisonment. ECF No. 342. Bell timely appealed
and the Government consented to a remand, which the Fourth
Circuit granted on January 28, 2011. ECF No. 413.
19, 2011, the grand jury returned a superseding indictment
against Bell. ECF No. 457. The only change from the original
indictment was that the threshold quantity of drugs alleged
in Count 1 was amended from 50 grams or more of cocaine base
to 5 kilograms or more of cocaine and 280 grams or more of
cocaine base. Id. Bell proceeded to trial on August
24, 2011 through August 26, 2011. ECF Nos. 508, 510, &
514. The jury returned a guilty verdict on all counts. ECF
Nos. 514 & 522.
February 6, 2012, the court sentenced Bell to 380 months
imprisonment on Count 1 and 360 months imprisonment on Counts
6 through 8, all to run concurrently. ECF No. 546. Judgment
was entered on February 8, 2012. ECF No. 553. The Fourth
Circuit affirmed Bell's conviction and sentence on April
26, 2013. See United States v. Bell, 523 F.
App'x 956 (4th Cir. 2013).
timely filed the within § 2255 petition on October 8,
2014. ECF. No. 624. Bell raises the following grounds for
relief: (1) ineffective assistance of counsel in violation of
his Sixth Amendment rights; and (2) prosecutorial misconduct
by knowingly using false testimony before the grand jury and
the petit jury to support Bell's indictment and
conviction. ECF No. 624-1 at 3-21. On November 10, 2014, the
Government filed a response in opposition and a motion for
summary judgment. ECF No. 633-34. Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the court issued
an order on November 12, 2014, advising Bell of the summary
judgment procedure and the possible consequences if he failed
to respond adequately. ECF No. 635. Bell filed a reply to the
Government's response on December 17, 2014. ECF No. 637.
27, 2016, Bell filed Pro Se Motion to Preserve Rights and to
any Applicable Law under Johnson v. United States,
135 S.Ct. 2551 (2015). ECF No. 654. The Government filed a
response in opposition on August 1, 2016, asserting that
Johnson would not apply in the context of Bell's
predicate drug offenses. ECF No. 661 at 1. The court issued a
Roseboro Order on August 8, 2016, advising Bell of
the summary judgment procedure and the possible consequences
if he failed to respond properly. ECF No. 662. No additional
response has been filed.
to Fed.R.Civ.P. 56(a), this court shall grant summary
judgment if the moving party shows that there is no genuine
dispute as to any material fact and the moving party is
entitled to judgment as a matter of law. The evidence
presents a genuine issue of material fact if a
“reasonable jury could return a verdict for the
non-moving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). The facts and any
inferences drawn from the facts should be viewed in the light
most favorable to the non-moving party. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962). The party
seeking summary judgment bears the initial burden of
demonstrating to the district court that there is no genuine
issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party makes this
showing, the opposing party must set forth specific facts
showing there is a genuine issue for trial. Id.
federal prisoner in custody may challenge the fact or length
of his detention by filing a motion pursuant to 28 U.S.C.
§ 2255. To receive relief under § 2255, a movant is
required to prove by a preponderance of the evidence that his
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. 28 U.S.C. §
2255(a). If this showing is made, the court must
“vacate and set the judgment aside” and
“discharge the prisoner or resentence him or grant a
new trial to correct the sentence as may appear
evidentiary hearing is required under § 2255 unless it
is clear from the pleadings, files, and records that a movant
is not entitled to relief. See United States v.
Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000);
see also United States v. Magini, 973 F.3d 261, 264
(4th Cir. 1992) (“When a colorable Sixth Amendment
claim is presented, and where material facts are in dispute
involving inconsistencies beyond the record, a hearing is
necessary.”). However, “no [evidentiary] hearing
is required if the [movant's] allegations cannot be
accepted as true because they are contradicted by the record,
inherently incredible, or conclusions rather than statements
of fact.” Jackson v. United States, 638
F.Supp.2d 514, 528 (W.D. N.C. 2009) (internal quotations
omitted). Whether an evidentiary hearing is necessary, and
whether a movant's presence is required, is left to
“the common sense and sound discretion” of the
district court.” Raines v. United States, 423
F.2d 526, 530 (4th Cir. 1970).
raises a number of grounds under an ineffective assistance of
counsel claim. To prove ineffective assistance of counsel, a
movant must show that trial counsel's performance was
deficient. See Strickland v. Washington, 466 U.S.
668, 687 (1984). An attorney's performance is deficient
when it is not reasonable under prevailing professional
norms. Id. at 688. A movant also must demonstrate
that he was prejudiced by trial counsel's alleged
deficient performance, in that because of trial counsel's
unprofessional errors, the result of the proceeding would
have been different. See id. at 694.
Strickland requires the movant to “identify
the acts or omissions of counsel that are alleged not to have
been the result of reasonable professional judgment.”
Id. at 690. The court then must “determine
whether, in light of all the circumstances, the identified
acts or omissions were outside the wide range of
professionally competent assistance.” Id.
“An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of
a criminal proceeding if the error had no effect on the
judgment.” Id. at 692. Unless a defendant
makes both showings, it cannot be said that the conviction .
. . resulted from a breakdown in the adversary process that
renders the result unreliable. Id. at 687.
Movant's Claims of Ineffective Assistance of
contends that his trial counsel, Jeffrey Bloom (hereinafter
“Bloom”), was constitutionally ineffective for:
(1) failing to investigate and interview witnesses Connie
Simpkins (hereinafter “Simpkins”) and Glenwood
Bettis (hereinafter “Bettis”), ECF No. 624-1 at
3; (2) failing to object to a Speedy Trial Violation,
id. at 4; (3) failing to object to statute of
limitations violation, id. at 5; (4) failure to move
for judgment of acquittal based on insufficient evidence of
drug quantity, insufficient evidence of participation in the
conspiracy, and insufficient evidence of aiding and abetting,
id. at 7-10; (5) failing to provide competent advice
with respect to a plea offer, id. at 11; (6) failing
to object to certain prior convictions being used at
sentencing, id. at 13-15; and (7) failing to object
to prosecutor's use of false testimony to obtain
Bell's indictment, see id. at 16.
Counsel's failure to Investigate Connie Simpkins and
argues that trial counsel Bloom was ineffective for failing
to interview Simpkins and Bettis pretrial because their
testimony would have established that Bell did not
participate in a conspiracy to distribute or possess 5
kilograms or more of cocaine and 280 grams or more of cocaine
base. ECF No. 624-1 at 3-4. Bell points to Simpkins'
affidavit, in which Simpkins states that she was never
involved in a drug conspiracy with Bell. ECF No. 624-2,
Exhibit A, Affidavit of Connie Simpkins. However, Simpkins
contradicted her affidavit at trial and placed Bell in the
conspiracy. See ECF No. 572 at ...