Opinion
5:17-CR-275-FL 5:20-CV-9-FL
07-27-2020
SAMUEL DEWAYNE DOOLITTLE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER AND MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR.UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on Petitioner Samuel Dewayne Doplittle's motion and supplemental motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, [DE-68, -75], motion for discovery, [DE-76], and motion for extension of time, [DE-83], and the Government's motion to dismiss, [DE-79]. Responsive briefing is complete, and the motions are referred to the undersigned for a memorandum and recommendation to the district court. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Crim. P. 59(b)(1). For the reasons stated below, Doolittle's motion for discovery is denied, his motion for extension of time is allowed in part, and it is recommended that the Government's motion to dismiss be allowed, Doolittle's § 2255 motions be denied, and his claims be dismissed.
I. PROCEDURAL HISTORY
On September 8, 2017, a federal Grand Jury in the Eastern District of North Carolina indicted Doolittle on the following charges: two counts of sex trafficking by force, fraud, and coercion in violation of 18 U.S.C. § 1591(a)(1), (a)(2) (Counts 1 & 2); two counts of interstate transportation for prostitution in violation of 18 U.S.C. § 2422(a) (Counts 3 & 4); two counts of interstate transportation for prostitution by coercion and enticement in violation of 18 U.S.C. § 2421(a) (Counts 5 & 6); and use of the internet to promote an unlawful business enterprise, namely, prostitution in violation of 18 U.S.C. § 1952(a)(3) (Count 7). On October 17, 2018, Doolittle pleaded guilty pursuant to a plea agreement to Counts 6 and 7. [DE-38, -40]. On February 1, 2019, the court sentenced Doolittle to 120 months' imprisonment on Count 6 and 15 months' imprisonment on Count 7, to be served consecutively, for a total term of 135 months' imprisonment; 5 years' supervised release on Count 6 and 3 years' supervised release on Count 7, to run concurrently; and no fine, with the issue of restitution held open. [DE-57, -62]. On February 13, 2019, the court entered an amended judgment to include restitution in the amount of $52,900.00. [DE-64]. Doolittle did not appeal his conviction or sentence.
On January 13, 2020, Doolittle timely filed the instant motion to vacate, set aside, or correct his sentence pursuant to § 2255, asserting (1) he received ineffective assistance from counsel at sentencing, and (2) his sentence was unconstitutional. [DE-68]. On February 21, 2020, Doolittle filed an amended motion, which expounded on the claims raised in his initial motion and also asserted that counsel was ineffective for failing to consult and file a notice of appeal. [DE-75]. On March 3, 2020, Doolittle filed a motion for discovery. [DE-76]. The Government moved to dismiss the § 2255 motion pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6), [DE-79], and filed a response in opposition to the motion for discovery, [DE-82]. On July 27, 2020, the court received Doolittle's motion for an extension of time. [DE-83].
II. STANDARD OF REVIEW
After conviction and exhaustion or waiver of any right to appeal, courts and the public can presume that a defendant stands fairly and finally convicted. See United States v. Frady, 456 U.S. 152, 164-65 (1982). However, prisoners in federal custody may attack the validity of their convictions pursuant to 28 U.S.C. § 2255. Section 2255 provides a means for a defendant convicted of a federal offense to collaterally attack a conviction or sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose the 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). "[T]hus § 2255 relief is not limited to constitutional error in a conviction or sentence." United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999) (citations omitted). Where a petitioner seeks relief from a nonconstitutional error, "the scope of review ... is more limited than that of constitutional error; a nonconstitutional error does not provide a basis for collateral attack unless it involves a fundamental defect which inherently results in a complete miscarriage of justice, or is inconsistent with the rudimentary demands of fair procedure[.]" Id. (internal quotation marks and citations omitted). "In a § 2255 proceeding, the burden of proof is on petitioner to establish his claim by a preponderance of the evidence." Toribio-Ascencio v. United States, No. 7:05-CR-97-FL, 2010 WL 4484447, at *1 (E.D. N.C. Oct. 25, 2010) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).
A court must dismiss all or part of an action over which it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Whether subject matter jurisdiction exists is a threshold question that must be addressed before considering the merits of the case. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999); see Fed. R. Civ. P. 12(h)(3) ("[I]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.")., The party opposing a Rule 12(b)(1) motion to dismiss has the burden of proving that subject matter jurisdiction does, in fact, exist. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). "In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Id. (citations omitted).
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint, not to resolve conflicts of fact or to decide the merits of the action. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). However, the'"[f]actual allegations must be enough to raise a right to relief above the speculative level' and have 'enough facts to state a claim to relief that is plausible on its face.'" Wahi v. Charleston Area Med. Ctr, Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitlement] to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Twombly, 550 U.S. at 555 (citations omitted). In considering a motion to dismiss, the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Revene v. Charles Cty. Comm 'rs, 882 F.2d 870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Moreover, a court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
The Sixth Amendment guarantees criminal defendants effective assistance of counsel. United States v. Murillo, 927 F.3d 808, 815 (4th Cir. 2019) (citing Strickland v. Washington, 466 U.S. 668, 685-86 (1984)). To demonstrate ineffective assistance of counsel, a petitioner must show that counsel's representation was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To establish deficient performance, the petitioner must overcome a '"strong presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). As to the prejudice component, a petitioner must show "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." Strickland, 466 U.S. at 694. It is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697 (explaining "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" or "to address both components of the inquiry if the defendant makes an insufficient showing on one").
III. ANALYSIS
A. Motion to Dismiss
Doolittle asserts that (1) the term of supervised release imposed is unenforceable because any revocation term, combined with his initial term of imprisonment, would improperly exceeded the statutory maximum penalty allowed by law; (2) counsel was ineffective for failing to object to the term of supervised release, the imposition of restitution, the requirement that he register as a sex offender, and a cross reference that enhanced his offense level by four points; and (3) counsel was ineffective for failing to consult and to file a notice of appeal. Am. Pet. [DE-75] at 1-14. The Government contends that Doolittle's § 2255 motion must be dismissed for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) because Doolittle is imprisoned, he cannot face a revocation that has not occurred, and as a result, he has suffered no injury in fact and lacks standing. Gov't's Mem. [DE-80] at 8-10. The Government alternatively contends that the court did not err in imposing supervised release, and thus, his counsel committed no error by not objecting. Id. at 10-15. Finally, the Government contends that Doolittle's additional claims that counsel was ineffective in failing to object to the imposition of restitution, the requirement that he register as a sex offender, and the cross reference, as well as counsel's failure to consult and to file a notice of appeal, all lack merit. Id. at 16-19.
1. Claims Related to Supervised Release
Doolittle contends his sentence of 135 months' imprisonment and 5 years' supervised release was in excess of the statutory maximum allowed by law and that his counsel was ineffective for failing to challenge it. Pet'r's Mot. [DE-68] at 4-5; Pet'r's Am. Mot. [DE-75] at 1-12.
The statutory maximum for Count 6 was 10 years' imprisonment, 18U.S.C. § 2421(a), and the statutory maximum for Count 7 was 5 years' imprisonment, 18 U.S.C. § 1952(a)(3)(A). Under 18 U.S.C. § 3583(k), the court was required to impose a term of supervised release of five years to life on Count 6. The court sentenced Doolittle to 120 months' imprisonment on Count 6 and 15 months' imprisonment on Count 7, to be served consecutively, for a total term of 135 months' imprisonment and 5 years' supervised release on Count 6 and 3 years' supervised release on Count 7, to ran concurrently. [DE-57, -62, -64].
Section 3583(k) provides as follows: "Notwithstanding subsection (b), the authorized term of supervised release for any offense under section 1201 involving a minor victim, and for any offense under section 1591, 1594(c), 2241, 2242, 2243, 2244, 2245, 2250, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, 2423, or 2425, is any term of years not less than 5, or life. If a defendant required to register under the Sex Offender Registration and Notification Act (SORNA) commits any criminal offense under chapter 109A, 110, or 117, or section 1201 or 1591, for which imprisonment for a term longer than 1 year can be imposed, the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment under subsection (e)(3) without regard to the exception contained therein. Such term shall be not less than 5 years."
Doolittle cites Johnson v. United States, 529 U.S. 694 (2000) and United States v. Haymond, 139 S.Ct. 2369 (2019) for the proposition that post-revocation sanctions are part of the penalty for the initial offense. Pet'r's Am. Mot. [DE-75] at 2; see Johnson, 529 U.S. at 701 (attributing post-revocation penalties to the original conviction); Haymond, 139 S.Ct. at 2379 ("[A]n accused's final sentence includes any supervised release sentence he may receive.") (plurality opinion). However, it does not follow that a combined sentence of imprisonment plus a term of supervised release may not exceed the statutory maximum term of imprisonment. The Fourth Circuit has expressly rejected such reasoning and held that "supervised release is not considered to be part of the incarceration portion of a sentence and therefore is not limited by the statutory maximum term of incarceration." United States v. Vincent, 316 Fed.Appx. 275, 278 (4th Cir. 2009) (citing United States v. Pierce, 75 F.3d 173, 178 (4th Cir. 1996)); see also Jackson v. United States, No. 5:06-CR-259-1-BR, 2008 WL 2323891, at *2 (E.D. N.C. June 2, 2008) (concluding "the term of supervised release imposed does not' count' towards that statutory maximum.") (citing United States v. Cenna, 448 F.3d 1279, 1281 (11th Cir. 2006) (concluding that it is a "well-settled rale that a term of supervised release may be imposed in addition to the statutory maximum term of imprisonment"), cert, denied, 127 S.Ct. 311 (2006); United States v. Work, 409 F.3d 484, 489 (1st Cir. 2005); United States v. Pettus, 303 F.3d 480, 487 (2nd Cir. 2002); United States v. Colt, 126 F.3d 981, 982-83 (7th Cir. 1997); United States v. Wright, 2F.3d 175, 179-80 (6th Cir. 1993); United States v. Purvis, 940 F.2d 1276, 1278 (9th Cir. 1991)).
The Supreme Court's recent decision in Haymond did not change the law in this regard. At issue in Haymond was the provision in § 3583(k) that provides for a mandatory minimum term of imprisonment on revocation.
[I]f a judge finds by a preponderance of the evidence that a defendant on supervised release committed one of several enumerated offenses, including the possession of child pornography, the judge must impose an additional prison term of at least five years and up to life without regard to the length of the prison term authorized for the defendant's initial crime of conviction.Haymond, 139 S.Ct. at 2374. Five justices held that this provision of § 3583(k) violates the Fifth and Sixth Amendments. Haymond, 139 S.Ct. at 2373 (plurality opinion); id. at 2386 (Breyer, J., concurring in the judgment). Justice Breyer reasoned in his controlling concurrence that this provision of "§ 3583(k) is unconstitutional because the five-year mandatory minimum for enumerated violations resembles criminal punishment for a new offense without any trial rights, rather than a sanction for breach of the court's trust." United States v. Coston, __F.3d__ 2020 WL 3956685, at *5 (4th Cir. July 13, 2020) (citing Haymond, 139 S.Ct. at 2386 (Breyer, J., concurring in the judgment)). In Haymond, only the final provision of § 3583(k) related to revocation was invalidated, and Doolittle is not facing a revocation. United States v. Curry, No.
CR 13-20887, 2020 WL 2542063, at *10 (E.D. Mich. May 19, 2020) (rejecting argument that Haymond warranted vacating the defendant's sentence because the "Defendant has not finished serving the term of imprisonment based on his conviction of the charges in the indictment and has not commenced his period of supervised release. Accordingly, the Court finds that Haymond is inapplicable and denies Defendant's claim based on Haymond"). Thus, Haymond lends no support to Doolittle's argument that a combined sentence of imprisonment and supervised release cannot exceed the statutory maximum term of imprisonment.
The Government also argues that Doolittle lacks standing to assert a challenge based on Haymond. Gov't's Mem. [DE-80] at 10. To demonstrate standing requires a showing of, "
(1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision." Susan B. Anthony List v. Driehaus, , 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (internal quotation marks omitted). "To establish injury in fact, [a petitioner] must show that he ... suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Spokeo, Inc. v. Robins, __U.S__, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).Maiherly v. Andrews, 859 F.3d 264, 277 (4th Cir. 2017). Haymond's case materially differs from Doolittle's case because Haymond's supervised release was revoked, and the judge imposed an additional five-year prison term as required by § 3583(k). Haymond, 139 S.Ct. at 2375. Doolittle, unlike Haymond, is still serving his initial sentence of imprisonment, and whether he might later violate his supervision and whether an additional prison term might be imposed under § 3583(k) is speculative at this point. Thus, Doolittle cannot demonstrate an injury in fact that is not "conjectural or hypothetical," and as a result, he lacks standing to challenge any future revocation sentence under § 3583(k). See Gruzebeck v. Fikes, No. CV 19-3035 (ECT/BRT), 2020 WL 1093645, at *3 (D. Minn. Jan. 29, 2020) ("Gruzebeck's assertion that, per Haymond, his constitutional rights will be violated should his supervised release be revoked amounts to nothing more than conjecture: Gruzebeck may never violate the conditions of his supervised release; if he does, his term of supervised release may not be revoked; if it is revoked, the resulting sentence may be imposed in a manner consistent with Haymond.'1''), adopted by 2020 WL 1082458 (D. Minn.Mar. 6, 2020). Accordingly, and Haymond claim is speculative at this point, and Doolittle lacks standing to raise it.
Doolittle also contends the supervised release imposed violates Alleyne v. United States, 570 U.S. 99 (2013) and Apprendi v. New Jersey, 530 U.S. 466 (2000). Pet'r's Mot. [DE-68] at 4; Pet'r's Am. Mot. [DE-75] at 4. The Court in Alleyne held that any fact increasing the statutory mandatory minimum is an element of the offense and must be submitted to the jury and found beyond a reasonable doubt. 570 U.S. at 103. The Court in Apprendi held that all facts necessary to increase the statutory maximum punishment must be proved to the jury beyond a reasonable doubt. 530 U.S. at 490. Doolittle's argument that Alleyne and Apprendi apply to invalidate his sentence is foreclosed by Haymond. The Fourth Circuit has recognized that Justice Breyer's controlling concurrence in Haymond, which departed from the plurality, found that Alleyne and Apprendi do not apply in the supervised release context. See Coston, 2020 WL 3956685, at *5 (citing Haymond, 139 S.Ct. at 2385 (Breyer, J., concurring in the judgment)).
Doolittle also argues that § 3583(k) is inapplicable to offenses that do not involve a minor victim. Pet'r's Am. Mot. [DE-75] at 4-8. Doolitte's argument contradicts the plain language of the statute, which provides that "the authorized term of supervised release for any offense under section 1201 involving a minor victim, and for any offense under section 1591, 1594(c), 2241, 2242, 2243, 2244, 2245, 2250, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, 2423, or 2425, is any term of years not less than 5, or life." 18 U.S.C. § 3583(k). The requirement that the offense involve a minor victim only modifies an offense under § 1201 and not § 2421, Doolittle's qualifying conviction. See United States v. Goodwin, 111 F.3d 511, 520 (7th Cir. 2013) (noting that "18 U.S.C. § 3583(k) mandates that registry violations [under § 2250] should be eligible for lifetime terms of supervised release regardless of whether they involve a minor victim''') (emphasis added).
The underlying challenges Doolittle makes to his supervised release sentence lack merit, and therefore, his counsel was not deficient under Strickland for failing to raise them before the court. SeeFordv. Polk, No. 5:07-HC-2070-FL, 2008 WL697462, at *11 (E.D. N.C. Mar. 14, 2008) ("Failure to raise a meritless claim does not fall below 'an objective standard of reasonableness.'") (citations omitted). Accordingly, it is recommended that Doolittle's claims that his sentence was unconstitutional and that his counsel was ineffective for failing to challenge it be dismissed.
2. Claims of Ineffective Assistance for Failure to Challenge Restitution, the Sex Offender Registration Requirement, and the Cross Reference
Doolittle contends that his counsel was ineffective for failing to challenge the restitution order, the requirement that he register as a sex offender, and the cross reference to enhance his offense level by four points. Pet'r's Am. Mot. [DE-75] at 12-14. Doolittle agreed in his plea agreement to pay restitution in the amounts of $41,000 to M.W. and $ 11, 900 to A.M.W. [DE-59] ¶ 2.b. Doolittle does not challenge the validity of his plea agreement. See Krol v. United States, No. 5:15-CR-292-FL-l, 2020 WL 1498876, at *12 (E.D. N.C. Jan. 23, 2020) (rejecting ineffective assistance claim relating to the restitution provision in the plea agreement where the plea agreement clearly stated the petitioner's restitution obligations and at arraignment petitioner represented he understood the plea agreement terms), adopted by 2020 WL 1492802 (E.D. N.C. Mar. 24, 2020). Thus, counsel was not ineffective for failing to challenge the restitution order.
Doolittle's plea agreement also included a provision acknowledging he understood that, under the Sex Offender Registration and Notification Act ("SORNA"), he must register as a sex offender. [DE-59] ¶ 3.f Notwithstanding, Doolittle now contends he was not required to register under SORNA because the victim voluntarily performed the alleged acts and SORNA was only meant to apply to offenses against minors. For purposes of SORNA, 34 U.S.C. § 20911(1) defines a "sex offender" as "an individual who was convicted of a "sex offense." The statute also defines "sex offense" to include a Federal offense under chapter 117, which includes 18 U.S.C. § 2421 for which Doolittle was convicted. 34 U.S.C. § 2091 \(5)(A)(m); see United States v. Helton, 944 F'.3d 198, 211 (4th Cir. 2019) (recognizing that § 20911(5)(A)(iii) defines sex offense to include the enumerated offense of 18 U.S.C. § 2421) (Floyd, J. dissenting), as amended (Dec. 4, 2019). Thus, the SORNA registration requirement was not improperly applied to Doolittle. See United States v. Rogers, No. 12-CR-20126-002, 2014 WL 5321072, at *3 (D. Kan. Oct. 16, 2014) (rejecting claim that defendant received ineffective assistance because he had to register as a sex offender where he attempted to facilitate prostitution in violation of § 2421, and finding it was immaterial whether the offense conduct involved a minor) (citing United States v. Costanzo, No. 8:10-CR-146, 2013 WL 4409160, at *9 (D. Neb. July 23, 2013) (holding that a "violation of 18 U.S.C. § 2421 clearly classifies the defendant as a sex offender")). Finally, while counsel did not object to the registration requirement, counsel did object to the factual findings in the PSR related to the voluntariness of the victim's conduct, [DE-46] ¶¶ 1, 3-4, but the court did not sustain those objections and adopted the PSR with the exception of application of the cross reference discussed below, [DE-63]. Thus, counsel was not ineffective for failing to challenge the SORN Aregistration requirement because Doolittle agreed to it in his plea agreement, it was required by law, and counsel did object to findings regarding the voluntariness of the victim's conduct.
Finally, as for the cross-reference, counsel objected to the PSR's proposed four-level enhancement under U.S.S.G. § 2A3.1(b)(1), [DE-46]¶5, and the court sustained the objection and declined to adopt the four-level enhancement, finding that "the application of USSG §2A3.1(b)(1) was not applicable for either victim." [DE-63] § I.B.I. Thus, counsel successfully advocated an objection to the cross reference and was not ineffective.
Accordingly, it is recommended that Doolittle's claims of ineffective assistance of counsel for failing to challenge the restitution order, the requirement that he register as a sex offender, and the cross reference be dismissed.
3. Claim of Ineffective Assistance for Failure to File an Appeal
Doolittle contends that "counsel was ineffective for failing to consult and file a notice of appeal pursuant to Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)." Pet'r's Am. Mot. [DE-75] at 14.
[C]ounsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.Roe, 528 U.S. at 480. Counsel's duty to consult with the defendant contemplates "advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes." Id. at 478. In determining whether counsel has a constitutional duty to consult, the Supreme Court provided the following guidance:
Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.Id. at 480. "If counsel has consulted with the defendant, the failure to file an appeal is deficient only if it contradicts the defendant's instruction to appeal." Hudson v. Hunt, 235 F.3d 892, 896 (4th Cir. 2000). Furthermore, in United States v. Peak, the Fourth Circuit held that if a client instructs his attorney to file an appeal, and the attorney fails to do so, the attorney's actions constitute ineffective assistance, notwithstanding the likelihood of success on appeal. 992 F.2d 39, 42 (4th Cir. 1993). Finally, the defendant must show prejudice, i.e., "a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Roe, 528 U.S. at 484.
Doolittle did not assert this claim in his initial § 2255 motion that was sworn under penalty of perjury. [DE-68]. Rather, Doolittle included in his unsworn amended § 2255 motion a one-sentence claim that fails to allege he wanted to file an appeal, he instructed his attorney to file an appeal, or that but for counsel's failure he would have appealed. Pet'r's Am. Mot. [DE-75] at 14. Doolittle's bare assertion in his motion that "counsel was ineffective for failing to consult and file a notice of appeal," Pet'r's Am. Mot. [DE-75] at 14, is insufficient to state a claim. See Eason v.United States, No. 5:08-CR-251-FL-3, 2015 WL 8481774, at *6 (E.D. N.C. Nov. 10, 2015) (concluding, without a hearing, that claim of ineffective assistance for failure to file a notice of appeal lacked merit where the petitioner contended his attorney did not file an appeal but did not allege that he ever instructed her to do so, and finding that "[a]bsent evidence that these allegations go beyond mere unsupported assertions, coupled with a waiver of appeal, the validity of which is unchallenged, and there being no allegation that [petitioner] requested that counsel file a notice of appeal on his behalf, this issue lacks merit and should be dismissed." (citing United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (noting that "vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court.")), adopted by 2015 WL 8483355 (E.D. N.C. Dec. 9, 2015). Doolittle has alleged no factual support whatsoever for this claim. See Iqbal, 556 U.S. at 679; Twombly, 550 U.S. at 555.
Furthermore, even assuming a failure to consult, there are no allegations from which the court could find a duty to consult in light of the Roe factors. Doolittle pleaded guilty, [DE-38, - 59], his plea agreement included a comprehensive appeal waiver, [DE-59], and he received a within guideline range sentence, [DE-63]. Additionally, Doolittle has not alleged prejudice-that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed. Given Doolitte's failure to plausibly allege a claim for ineffective assistance based on the failure to consult or to file an appeal, no hearing is required. See Eason, 2015 WL 8481774, at *6; Ortiz v. United States, No. CIV. AW-11-2317, 2011 WL 6945711, at *2 (D. Md. Dec. 30, 2011) (finding no hearing on claim of ineffective assistance for failure to file an appeal was needed because "Petitioner's one sentence statement and claim that he directed his counsel to appeal in the face of other clear evidence is but a bald allegation and is utterly without merit."). Accordingly, it is recommended that this claim be dismissed.
B. Motion for Discovery
Rule 6 of the Rules Governing Section 2255 Proceedings provides authority for a habeas petitioner to conduct discovery with leave of the court. However, "[t]he right to conduct discovery in federal habeas corpus proceedings is more limited than that applicable to normal civil actions." Sears v. White, No. 5:12-HC-2066-F, 2013 WL 1209624, at *3 (E.D. N.C. Mar. 25, 2013), appeal dismissed, 557 Fed.Appx. 252 (4th Cir. 2014), cert, denied, 135 S.Ct. 94 (2014). The right to discovery requires a showing of "good cause," which "must include specific allegations suggesting that the petitioner will be able to demonstrate that he is entitled to habeas corpus relief." Id. (quoting Quesinberry v. Taylor, 1.62 F.3d 273, 279 (1998); Bracy v. Gramley, 520 U.S. 899, 908-09 (1997)). Because, as discussed above, Doolittle has failed to plausibly allege any claims that would entitle him to habeas relief, Doolittle cannot demonstrate good cause for discovery, and the motion is denied.
C. Motion for Extension of Time
On July 27, 2020, the court received Doolittle's "request for extension of time in relation to this case" dated July 15, 2020. [DE-83]. Doolittle indicated he had not received a response, to presumable a prior request, from the court. Id. Doolittle also indicated that the prison had been on "lockdown/quarantine" since April 1, 2020 and that inmates only receive one hour a week of time in the law library. Id. There are no pending deadlines in this case, the court did not receive a prior request for an extension from Doolittle, and it is unclear what deadline he sought to extend. However, given Doolittle's asserted limited access to the law library, the court will allow Doolittle 30 days, rather than the typical 14 days, to respond to this Order and Memorandum and --'" Recommendation. Doolittle may request a further extension should the need arise. Accordingly, the motion is allowed in part., and Doolittle's response to this Order and Memorandum and Recommendation shall be due August 26, 2020.
IV. CONCLUSION
For the reasons stated above, Doolittle's motion for discovery is DENIED, his motion for extension of time is ALLOWED IN PART, and it is recommended that the Government's motion to dismiss be ALLOWED, Doolittle's § 2255 motions be DENIED, and his claims be DISMISSED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until August 26, 2020 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).