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Bryan v. United States

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

December 12, 2019

ERNEST BRYAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE.

         This matter is before the court on petitioner Ernest Bryan's (“Bryan”) motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255, ECF No. 62. The government filed a motion to dismiss or, in the alternative, for summary judgment, ECF No. 73. For the reasons set forth below, the court denies Bryan's petition and grants the government's motion for summary judgment.

         I. BACKGROUND

         On August 13, 2013, Bryan was named in an indictment charging him with possession with intent to distribute cocaine base, marijuana, and MDMA in violation of 21 U.S.C. § 841 (Count 1); felony possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) (Count 2); and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count 3). On December 1, 2014, Bryan pled guilty to Counts 1 and 2 pursuant to a written plea agreement. On June 17, 2015, the court sentenced Bryan to 180 months imprisonment and five years of supervised release. On June 29, 2015, Bryan filed a motion for reconsideration of his sentence in light of the Supreme Court's then-recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The court granted Bryan's motion and, on August 7, 2015, entered judgment, reducing Bryan's sentence to 151 months imprisonment and three years of supervised release.

         On June 21, 2016, Bryan, acting pro se, filed the instant motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. ECF No. 62. On October 31, 2016, the government filed a motion to dismiss the petition or, in the alternative, for summary judgment. ECF No. 73. Bryan responded to the government's motion on December 1, 2016. ECF No. 78.

         II. STANDARD

         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). Liberal construction, however, does not mean that a court may ignore a clear failure in the pleading to allege facts that set forth a cognizable claim. See Weller v. Dep't of Soc. Servs., 901 F.3d 387, 390-91 (4th Cir. 1990).

         Pursuant to 28 U.S.C. § 2255(a):

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 the sentence.

         The petitioner must prove the grounds for collateral attack by a preponderance of the evidence.[1] See King v. United States, 2011 WL 3759730, at *2 (D.S.C. Aug. 24, 2011) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).

         If, on a motion to dismiss, the court considers matters outside of the pleadings, such as a party's supporting memoranda and attachments, the court treats the motion as one for summary judgment. Fed.R.Civ.P. 12(d). “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) (2010). 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         III. DISCUSSION

         Bryan contends that he is entitled to relief because his counsel rendered ineffective assistance that fell below a constitutionally permissible standard. Bryan asserts five grounds in support of his ineffective-assistance claim: that his counsel (1) failed to contest Bryan's sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000), (2) failed to object to Bryan's absence at his resentencing, (3) failed to move to withdraw Bryan's guilty plea after the court granted his motion to reduce his sentence, (4) failed to object to the court's use of Bryan's prior felony convictions in Georgia to enhance his sentence as a Career Offender, and (5) failed to request a variance based on Bryan's medical issues. The court addresses each in turn, finding no ground that supports relief.

         In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance. “To establish cause for [a] default based upon ineffective assistance of counsel, [petitioner] must show that [(1)] [his] attorney['s] performance fell below an objective standard of reasonableness and [(2)] that [he] suffered prejudice as a result.” United States v. Mikalajunas, 186 F.3d 490, 492 (4th Cir. 1999) (citing Strickland, 466 U.S. at 687). “There is a strong presumption that counsel's performance falls within the ‘wide range of professional assistance,' [and] the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms . . . .” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 688-689).

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the ...

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