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Knox v. United States

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

December 19, 2019

Brian O'Neal Knox, Petitioner,
United States of America, Respondent.


          R. Bryan Harwell, Chief United States District Judge.

         This matter is before the Court on Petitioner Brian O'Neal Knox's (“Petitioner's”) pro se [ECF No. 97] motion to vacate, set aside, or correct sentence (“motion to vacate”) pursuant to 28 U.S.C. § 2255. Also pending is the Government's [ECF No. 109] motion for summary judgment, Petitioner's [ECF No. 101] motion to appoint counsel, and Petitioner's [ECF NO. 113] motion for evidentiary hearing.

         Petitioner's motion to vacate alleges six grounds for relief including an allegation that he instructed his counsel to file a direct appeal despite having waived his right to appeal in the plea agreement and at sentencing. Petitioner's signed appeal waiver [ECF No. 85] suggests Petitioner did not want to appeal. However, the Court is constrained by Petitioner's sworn statement that he requested that an appeal be filed anyway, and would require an evidentiary hearing. See United States v. Poindexter, 492 F.3d 263, 273 (4th Cir. 2007). Under the mandates of Poindexter and the unique circumstances of this case, the Court sees little harm in forgoing an evidentiary hearing on this issue and simply granting Petitioner a belated appeal. Accordingly, for the reasons explained more fully below, the Court grants Petitioner's motion to vacate as to ground four only and grants Petitioner a belated appeal.

         Procedural History and Factual Background

         On April 26, 2017, Petitioner was indicted in a three count indictment. [ECF No. 18]. Count one alleged possession with intent to distribute a quantity of cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Count two alleged that Petitioner used or carried a firearm during and in relation to, and possessed a firearm in furtherance of, a drug trafficking crime, which is prosecutable in a court of the United States in violation of 18 U.S.C. § 924(c)(1)(A). Count three alleged felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e).

         On December 5, 2017, Petitioner pled guilty to count two (§ 924(c) charge) pursuant to a Rule 11(c)(1)(C) plea agreement, which provided for a stipulated sentence of 168 months in prison. On April 25, 2018, Petitioner was sentenced to 168 months in prison consistent with the terms of his Rule 11(c)(1)(C) plea agreement. At sentencing, Petitioner signed a waiver of appeal indicating that he did not want to appeal. See [ECF No. 85]. Judgment was filed on May 1, 2018.

         Petitioner filed the instant pro se motion to vacate on May 14, 2019.

         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. 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 insufficient showing on one.” Id. at 697.

         In examining the performance of counsel, there is “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .” Id. at 689. A reviewing court must be highly deferential in scrutinizing counsel's performance and must filter from its analysis the “distorting effects of hindsight.” Id.

         Regarding “deficient performance, ” a court must defer to counsel's tactical decisions and give counsel the benefit of a strong presumption of reasonableness. See Id. at 689. While an attorney has a duty to investigate reasonable claims and defenses, an attorney's performance cannot be deemed ineffective or deficient if he fails to raise a defense which is “very weak”. Smith v. State of South Carolina, 882 F.2d 895, 898 (4th Cir. 1989); Sistrunk v. Vaughn, 96 F.3d 666, 671 (3rd Cir. 1996). A habeas petitioner alleging prejudice must show “that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. That the outcome may have been different but for counsel's error is not dispositive of the “prejudice” inquiry. Rather, a court must determine whether the result of the proceeding was ...

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