Opinion
No. 4:17-CR-46-FL-5 No. 4:20-CV-164-FL
04-02-2021
PATRICK DIREECE HOLIDAY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND RECOMMENDATION
This matter comes before the court on Petitioner Patrick Direece Holiday's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, [DE-381], and the Government's motion to dismiss, [DE-396]. The time for responsive briefing has expired, and the matter is ripe for decision. For the reasons stated below, it is recommended that the motion to dismiss be allowed and the petition be denied.
I. PROCEDURAL HISTORY
Holiday pleaded guilty pursuant to a written plea agreement to one count of conspiracy to distribute and possession with intent to distribute one kilogram or more of heroin and a quantity of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and one count of possession with intent to distribute one hundred grams or more of heroin and a quantity of marijuana and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 841(b)(1)(D), and 18 U.S.C. § 2. [DE-152, -222]. The court sentenced Holiday to 96 months' imprisonment and five years' supervised release on each count to run concurrently, and judgment was entered on August 29, 2019. [DE-298]. Holiday did not appeal his conviction or sentence.
On August 28, 2020, Holiday timely filed a motion to vacate, set aside, or correct his sentence pursuant to § 2255, asserting that his counsel was ineffective at sentencing for failing to challenge the drug weight attributed to him and his criminal history points. [DE-381]. The Government moved to dismiss the petition on the grounds that Holiday stipulated to the drug weight in the plea agreement; his criminal history was properly calculated; his ineffective assistance claims are a guise to challenge his sentence, but he waived that right in the plea agreement; his claim that his plea was possibly unknowing and involuntary is speculative and fails to state a claim; and he fails to allege prejudice or that the result of any proceeding would have been different. [DE-397].
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)).
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. Ineffective Assistance for Failure to Object to Drug Weight
Holiday first contends that he informed the court he was unable to read or to understand the terms of his plea agreement, he only recently was able to understand that the drug weight erroneously attributed to him is what drove his sentence, counsel was ineffective for failing to object to the drug weight at sentencing, and the error possibly lead to an unknowing and involuntary plea agreement that prejudiced him. Pet. [DE-381] at 4.
The page numbers cited correspond to the CM/ECF footer where they differ from the document's internal page number.
Holiday's claim that his counsel was ineffective for failing to object to the drug weight fails because Holiday agreed to the drug weight in his plea agreement. The parties agreed in the plea agreement that the "relevant and readily provable" drug weight to be used in determining Holiday's base offense level for sentencing purposes was "[a]t least one kilogram but less than three kilograms of heroin." Plea Agreement [DE-296] at 8. The Presentence Investigation Report ("PSR"), which the court adopted at sentencing, calculated Holiday's "base offense level" using the agreed-to weight. PSR [DE-274] at 16 ¶ 78; Statement of Reasons [De-299] at 1 § I.A. Holiday affirmed at sentencing that he read the PSR and had enough time to talk with his counsel to be ready for sentencing. Sentencing Tr. [DE-415] at 3:11-15. Therefore, counsel was not ineffective for failing to object to the drug weight to which Holiday stipulated to in the plea agreement. See Cervantes-Sanchez v. United States, No. 5:18-CR-48-KDB-DSC-5, 2020 WL 2556955, at *6 (W.D.N.C. May 20, 2020) ("Counsel cannot be deemed ineffective for failing to object to facts contained in the PSR to which Petitioner stipulated as part of his free and voluntary guilty plea."), appeal dismissed, 837 F. App'x 247 (4th Cir. 2021).
Holiday attempts to circumvent this result by arguing that he did not understand the terms of his plea agreement because he is unable to read, but this argument is belied by Holiday's own statements made under oath during the Rule 11 plea proceeding. Holiday was carefully questioned at his Rule 11 plea proceeding, which was conducted by the undersigned, to ensure his plea was both knowing and voluntary. Holiday was asked whether he was able to read, and he responded, "A little, sir." Arraignment Tr. [DE-413] at 12. Holiday's counsel was asked whether Holiday's limited ability to read had impacted counsel's ability to work with Holiday, and counsel responded, "Not as far as I can tell" and affirmed there was no impediment to moving forward with the proceeding. Id. at 13-14. Holiday also confirmed that he received a copy of the indictment and understood what he was charged with, and he waived the reading of the indictment. Id. at 15. With respect to the plea agreement, the court specifically questioned Holiday regarding his understanding of the agreement in light of his limited reading ability:
THE COURT: Have you had an opportunity to read and to discuss this plea agreement with your attorney, and did you, in fact, do so?
THE DEFENDANT: Yes, sir.
THE COURT: Does the plea agreement represent in its entirety any and all agreements that you have with the United States and the United States Attorney?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Now, it's important that you think about this case because of what you told me about your reading ability.
Let me ask you this, sir: Did you understand the terms of the plea agreement, the language, the words, the sentences of it, even any legal phrases that are used in the plea agreement, after you discussed it with Mr. Allen?
THE DEFENDANT: Yes, sir.
. . . .
THE COURT: All right. Do you need any more time either to think about your plea or to discuss your case with Mr. Allen before entering your plea?
THE DEFENDANT: No, sir.
THE COURT: All right, Mr. Holiday, sir, how do you plead to Count 1 of the third superseding indictment?Id. at 17, 19. The Government recounted in the factual basis a cooperator's statement that from 2015 to 2017 Holiday and a co-defendant were receiving and distributing 100 grams of heroin each month, which totals approximately 2.4 kilograms each over two years. Id. at 23. Holiday affirmed that he did not dispute anything in the factual basis. Id.
THE DEFENDANT: Guilty.
THE COURT: Mr. Holiday, how do you plead to Count 2 of the third superseding indictment?
THE DEFENDANT: Guilty.
Holiday's statements made under oath at the Rule 11 plea hearing that, despite his limited reading ability, he understood both what he was charged with and the terms of his plea agreement preclude him from now arguing that he did not in fact understand those terms.
[A] defendant's solemn declarations in open court . . . carry a strong presumption of verity . . . because courts must be able to rely on the defendant's statements made under oath during a properly conducted Rule 11 plea colloquy. . . . Indeed, because they do carry such a presumption, they present a formidable barrier in any subsequent collateral proceedings. Thus, in the absence of extraordinary circumstances . . . allegations in a § 2255 motion that directly contradict the petitioner's sworn statements made during a properly conducted Rule 11 colloquy are always palpably incredible and patently frivolous or false. Thus, in the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the sworn statements. Otherwise, a primary virtue of Rule 11 colloquies would be eliminated—permitting quick disposition of baseless collateral attacks.United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005) (internal citations and quotation marks omitted); see also Blackledge v. Allison, 431 U.S. 63, 74 (1977). Accordingly, Holiday's argument that his plea was not knowing or voluntary because he did not understand the drug weight to which he stipulated in his plea agreement is contradicted by his statements at the Rule 11 plea hearing and, thus, lacks merit.
B. Ineffective Assistance for Failure to Object to Criminal History Points
Holiday next contends his counsel was ineffective for failing to object to unspecified outdated criminal history points, which Holiday claims increased his guideline range at sentencing. Pet. [DE-381] at 4.
Holiday received a criminal history score of eleven, which establishes a criminal history category of V, pursuant to the sentencing table in USSG Chapter 5, Part A. PSR [DE-274] ¶ 59. Holiday's criminal convictions resulted in nine criminal history points. Id. ¶ 57. Ten points were initially scored but only nine were ultimately counted because only four points may be counted under USSG § 4A1.1(c), and Holiday had five such points. PSR [DE-274] ¶ 57. Two points were added because Holiday committed the criminal conduct to which he pleaded guilty while on probation under USSG § 4A1.1(d). PSR [DE-274] ¶ 58. Holiday does not specify which criminal history points he believes are outdated, but a review of his criminal history confirms it was scored correctly.
A conviction for possession of weapons on educational property or aiding and abetting that occurred when Holiday was sixteen years old, for which he received twelve months' probation, id. ¶ 46, was not scored under USSG §§ 4A1.2(d)(2) and 4A1.2(e)(4). A conviction for possession of marijuana and resisting a public officer that occurred in 2003, for which Holiday received a suspended sentence of 30 days custody, PSR [DE-274] ¶ 47, was not scored under USSG § 4A1.2(e)(3). Finally, a 2018 conviction for driving while license revoked, for which Holiday received a suspended sentence and probation, PSR [DE-274] ¶ 55, was not scored under USSG § 4A1.2(c)(1).
The remainder of Holiday's convictions were properly scored because they occurred within the applicable time period of Holiday's commencement of the relevant offense conduct in 2015. PSR [DE-274] ¶¶ 33, 41. A 2006 conviction for assault by pointing a gun, for which Holiday served at least 60 days, id. ¶ 50, was properly scored because the sentence was imposed within ten years of the commencement of the relevant offense conduct in 2015, USSG §§ 4A1.1(b) and 4A1.2(e)(2). Holiday pleaded no contest in 2007 to assault inflicting serious injury and served a sentence exceeding one year and one month. PSR [DE-274] ¶ 51. Because the sentence was imposed within fifteen years of the commencement of the relevant offense conduct in 2015, the conviction was not outdated and was properly scored under USSG §§ 4A1.1(a) and 4A1.2(e)(1). The remaining convictions had sentences imposed within ten years of the commencement of the relevant offense conduct in 2015, PSR [DE-274] ¶¶ 48, 49, 52, 53, 54, and were properly scored pursuant to USSC §§ 4A1.1(c) and 4A1.2(e)(2). Thus, Holiday's claim that his criminal history score improperly counted outdated convictions lacks merit, and counsel is not ineffective for failing to raise a meritless objection. See Gomez-Ortiz v. United States, No. 5:12-CR-214-D, 2015 WL 1808949, at *3 (E.D.N.C. Apr. 20, 2015) (finding the failure to raise a baseless objection to the defendant's criminal history points at sentencing was not deficient performance); Ford v. Polk, No. 5:07-HC-2070-FL, 2008 WL 697462, 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).
IV. CONCLUSION
For the reasons stated above, it is recommended that that the motion to dismiss be allowed, and the petition be denied.
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 April 16, 2021 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).
Submitted, the 2nd day of April 2021.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge