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Evans v. United States

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

May 17, 2018

Archie Larue Evans, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. Bryan Harwell United States District Judge.

         Pending before the Court is Petitioner Archie Larue Evans' (“Petitioner”) pro se [ECF No. 199] motion to vacate, set aside, or correct sentence (“motion to vacate”) pursuant to 28 U.S.C. § 2255. Also pending is Petitioner's [ECF No. 217] motion for judgment on the pleadings and the government's [ECF No. 220] motion for summary judgment.

         Procedural History and Factual Background

         Petitioner was indicted on July 24, 2012, in a fourteen count indictment. [ECF No. 2]. Counts one through eight alleged mail fraud in violation of 18 U.S.C. § 1341. Counts nine through thirteen alleged money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i). Count fourteen alleged a conspiracy to defraud the United States in violation of 18 U.S.C. § 371.

         On January 9, 2013, Petitioner signed a plea agreement wherein Petitioner agreed to plead guilty to count eight (mail fraud) and count fourteen (conspiracy). [ECF No. 40]. Petitioner entered his guilty plea the same day. [ECF No. 42].

         On February 6, 2013, Petitioner filed a pro se motion to relieve counsel, Scott Bellamy, Esq. [ECF No. 44]. The pro se motion to relieve counsel was also construed as a pro se motion to withdraw guilty plea. The Court held a hearing on Petitioner's motion to relieve Bellamy on February 14, 2013, and granted Petitioner's motion to relieve counsel. The Court then appointed William F. Nettles, IV, Esq., Assistant Federal Public Defender, to represent Petitioner.

         On March 14, 2013, Petitioner, through counsel, filed an amended motion to withdraw his guilty plea. [ECF No. 53]. The government filed a response in opposition to Petitioner's amended motion to withdraw his guilty plea on March 26, 2103. The Court then set a hearing for April 24, 2013, on Petitioner's motions to withdraw his guilty plea.

         On April 23, 2013, the day before the hearing, Petitioner withdrew his motion to withdraw his guilty plea. [ECF No. 60]. Petitioner filed a declaration stating "[a]fter consultation with my attorney, I have instructed my attorney to withdraw my pro se motion to withdraw my guilty plea as well as the amended motion to withdraw my guilty plea. I intend to stand by my guilty plea." [ECF No. 60-1].

         On May 22, 2013, Petitioner filed a second motion to relieve counsel. This time, Petitioner sought to remove William F. Nettles. [ECF No. 64]. The Court set a hearing for July 1, 2013, on Petitioner's second motion to relieve counsel.

         At the hearing, Petitioner elected to proceed pro se. The Court granted Petitioner's motion to relieve counsel and found that Petitioner knowingly and voluntarily waived his right to counsel. [ECF No. 77]. The Court ordered Mr. Nettles to serve as standby counsel.

         A presentence investigation report (“PSR”) dated March 20, 2013, and revised on November 22, 2013, January 13, 2014, and May 13, 2014, was prepared by the U.S. Probation Office. With regard to sentencing options, the PSR stated that Petitioner's maximum statutory sentence on count eight was 20 years, pursuant to 18 U.S.C. § 1341. Petitioner's maximum statutory sentence on count fourteen was 5 years under 18 U.S.C. § 371. Petitioner's advisory guideline range was 87 to 108 months, based on a total offense level of 29 and criminal history category of I. The PSR found that, based on the actual loss suffered by each victim, restitution in the amount of $3, 779, 389.53 was due to fourteen victims.

         On July 9, 2014, Petitioner was sentenced to 84 months as to count eight and 60 months as to count fourteen, to run concurrently. [ECF No. 138]. Petitioner was also placed on supervised release for 3 years upon his release from prison. Petitioner was ordered to pay restitution in the amount of $3, 763, 339.53.

         Judgment was entered on July 11, 2014. [ECF No. 138].

         Petitioner filed a timely notice of appeal of the final judgment on July 9, 2014. [ECF No. 132]. Petitioner's appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there were no meritorious grounds for appeal. Petitioner also filed a pro se supplemental brief that raised numerous challenges to his guilty plea and sentence.

         The Fourth Circuit Court of Appeals affirmed Petitioner's conviction and sentence in an opinion dated July 8, 2015. [ECF No. 191]. The mandate and judgment were issued on July 30, 2015.

         Petitioner filed the instant motion to vacate pursuant to 28 U.S.C. § 2255 on October 12, 2016. The government filed a response to Petitioner's motion to vacate and a motion for summary judgment on May 12, 2017.

         Applicable Law

         Prisoners in federal custody may attack the validity of their sentences pursuant to 28 U.S.C. § 2255. In order to move the court to vacate, set aside, or correct a sentence under § 2255, a petitioner must prove that 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). Nonconstitutional claims may be brought pursuant to § 2255, but will not provide a basis for collateral attack unless the error involves a “fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct., 2235, 2240 (1979); United States v. Morrow, 914 F.2d 608, 613 (4th Cir. 1990).

         A petitioner cannot ordinarily bring a collateral attack on the basis of issues litigated on direct appeal. United States v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013) (stating petitioner “cannot ‘circumvent a proper ruling . . . on direct appeal by re-raising the same challenge in a § 2255 motion'”); United States v. Linder, 552 F.3d 391, 396 (4th Cir. 2009); Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir.), cert denied, 429 U.S. 863, 97 S.Ct. 169 (1976). An exception occurs where there has been an intervening change in the law. Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2302 (1974). Additionally, where a defendant could have raised a claim on direct appeal but fails to do so, the claim may only be raised in a federal habeas proceeding if the defendant can show both cause for and actual prejudice from the default, see Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), or that he is actually innocent, see Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).

         In deciding a motion to vacate, the court may summarily dismiss the motion “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Rules Governing Section 2255 Proceedings 4(b); see 28 U.S.C. § 2255(b) (a hearing is not required on a § 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief). An evidentiary hearing “is required when a movant presents a colorable [ ] claim showing disputed material facts and a credibility determination is necessary to resolve the issue.” United States v. Coon, 205 Fed.Appx. 972, 973 (4th Cir. 2006) (citing United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000)). However, a hearing is not required unless the claim shows “disputed facts involving inconsistencies beyond the record.” United States v. Robinson, 238 Fed.Appx. 954, 955 (4th Cir. 2007). Conclusory allegations contained within affidavits do not require a hearing. Strong v. Johnson, 495 F.3d 134, 139-40 (4th Cir. 2007). “Thus, no hearing is required if the petitioner's allegations ‘cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statement of fact.' ” Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).

         Petitioner's motion to vacate alleges, among other things, ineffective assistance of counsel. Claims of ineffective assistance of counsel are constitutional in nature and therefore are properly asserted under § 2255. The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.” U.S. Constitution. amend VI. The United States Supreme Court has interpreted the Sixth Amendment to require that counsel be effective. Strickland v. Washington, 466 U.S. 668, 686, (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)). In order to prevail on an ineffective assistance claim, petitioner must satisfy the two-prong test of Strickland that (1) his “counsel's representation fell below an objective standard of reasonableness, ” id. at 688; and (2) that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. In the context of a guilty plea, Petitioner must show "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

         A court applying the Strickland test may apply either prong first and does not need to analyze both prongs of the test if petitioner makes “an ...


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