Opinion
5:19-CR-00104-FL 5:22-CV-00191-FL
06-23-2023
Shawn Antonio McNeill, Petitioner, v. United States of America, Respondent.
MEMORANDUM & RECOMMENDATION
ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE
Petitioner Shawn Antonio McNeill, proceeding under 28 U.S.C. § 2255, seeks to vacate the 115-month sentence he received after pleading guilty to being a felon in possession of a firearm. Am. Mot. Vacate, D.E. 73. McNeill brings several claims for relief: First, he contends that his attorney provided ineffective assistance by withdrawing a motion to suppress. Id. at 4. Next, he argues that his attorney violated his constitutional right to counsel by failing to file a notice of appeal. Id. He then alleges that the district court applied the wrong advisory guideline range when it sentenced him. Id. at 5. And finally, he maintains that the court failed to explain why it imposed certain discretionary conditions of post-incarceration supervised release at sentencing. Id. at 7. The court referred this matter to the undersigned to hold an evidentiary hearing and issue a Memorandum and Recommendation (“M&R”) on McNeill's motion.
Unless otherwise noted, docket citations refer to documents in McNeill's criminal case, No. 5:19-CR-00104-FL.
After conducting that hearing, reviewing the docket, and considering the parties' arguments, the undersigned concludes that McNeill is not entitled to the relief he seeks. His claims arising from his counsel's competency fail because he instructed his attorney to withdraw the motion to suppress and did not explicitly ask his attorney to appeal. His advisory guidelines challenge meets a similar fate-the Fourth Circuit Court of Appeals has held that this argument is not cognizable on § 2255 review. And his final claim for relief fails because he could have raised it on direct appeal. Thus, the undersigned recommends that the court deny McNeill's amended motion to vacate (D.E. 73) and grant the government's motion to dismiss (D.E. 58).
I. Background
In October 2018, McNeill drove past a Fayetteville police officer. See Presentence Investigation Report (“PSR”) ¶ 6, D.E. 37. The officer began to follow McNeill's car because he believed the car sported illegally tinted windows and smelled like marijuana. Id. McNeill eventually pulled into his grandmother's driveway and began to walk toward her house. Id. But before McNeill could enter the house, the officer ordered him back to his car. Id. The officer then searched McNeill and his vehicle, uncovering cash, a small amount of drugs, and a loaded handgun. Id.
The following March, a federal grand jury charged McNeill with being a felon in possession of a firearm. Indictment, D.E. 1. After his arrest, McNeill retained an attorney- William F. Finn, Jr.-to represent him.
McNeill eventually moved to suppress the evidence gathered from the traffic stop, contending that the search violated his Fourth Amendment rights. See Mot. Suppress, D.E. 19. But he withdrew the motion a month later. See Mot. Withdraw Mot. Suppress, D.E. 22.
At his arraignment, McNeill pleaded guilty pursuant to a plea agreement. See Mem. Plea Agreement, D.E. 32. As part of that agreement, McNeill agreed to waive his right to appeal or otherwise challenge his conviction and sentence, except for claims of ineffective assistance of counsel or prosecutorial misconduct not known to him at the time of his guilty plea. Mem. Plea Agreement at 1. He also said, under oath, that he had discussed his plea agreement with Finn and was satisfied with his advice and counsel. See Arraignment Tr. at 19:13-17, 16:17-19, D.E. 69.
In January 2021, the government filed a superseding information. D.E. 5. While the superseding information alleged the same offense as McNeill's 2019 indictment, it added.
Four months later, the United States Probation Office filed its Presentence Investigative Report (“PSR”). In that report, the Probation Office determined that McNeill qualified as an armed career offender. It reached this conclusion because he had been convicted of two prior “felony convictions of either a crime of violence or a controlled substance offense.” See PSR ¶ 51. Thus, the Probation Office recommended a base offense level of 24 under United States Sentencing Guidelines § 2K2.1(a)(2). Id. After applying other adjustments, the Probation Office determined that McNeill's total offense level was 25. See id. ¶ 60. It also concluded that McNeill had a criminal history category of VI. Id. ¶ 29. Given these factors-and considering the statutory maximum for McNeill's offense-the Guidelines recommended a sentence of 110 to 120 months in prison. Id. ¶ 62.
McNeill pleaded guilty to Possession With Intent to Sell or Deliver Cocaine in North Carolina in 2008 and Possession With Intent to Distribute Cocaine in New Jersey in 2012. See PSR ¶¶ 24 & 27.
After adopting the PSR and sentencing recommendation, the court sentenced McNeill to 115 months in prison followed by three years of supervised release. Judgment at 2-3, D.E. 46. At sentencing, the court imposed several discretionary conditions as part of McNeill's supervised release. Finding that he had “some financial issues[,]” the court ordered him “not to open up any language claiming that McNeill knew he was a felon when he possessed the firearm. Compare Indictment at 1, with Superseding Information at 1, D.E. 25. McNeill waived his right to be charged in an indictment at his arraignment. Waiver of Indictment, D.E. 31. new credit accounts or incur any credit charges without the approval of [his] probation officer.” Sentencing Tr. at 8:19-23, D.E. 50. The court also ordered him to give his probation officer access to his financial information upon request. Id. at 8:23-24; see also Judgment at 5 (memorializing these conditions). Finally, the court advised McNeill of his appeal rights. Sentencing Tr. at 9:2110:3. But McNeill did not appeal.
When McNeill was sentenced, felons in possession of a firearm could serve up to ten years in prison. See 18 U.S.C. § 924(a)(2) (2021).
He did, however, move to vacate his sentence. And he later amended his motion after the court appointed counsel for him.
McNeill's amended motion contends that his sentence should be vacated for four reasons: First, he alleges that Finn rendered ineffective assistance for failing to appeal his sentence despite knowing that McNeill still harbored constitutional concerns about the October 2018 search of his car. Am. Mot. Vacate at 4. Second, he contends that Finn violated his right to counsel by withdrawing the motion to suppress. Id. Third, McNeill argues that the district court erroneously classified him as a career offender at sentencing because his prior felony convictions are not “controlled substance offenses” under the United States Sentencing Commission's Guidelines. Id. at 5. And finally, McNeill challenges the validity of the financial conditions imposed as part of his supervised release. Id. at 7. He argues that, while the court announced these conditions at sentencing, it did not establish that they were reasonable or “based upon an individualized assessment of” McNeill's situation. Id.
In response, the government asked the court to dismiss McNeill's motion. Mot. Dismiss, D.E. 58. At bottom, the government levies the same arguments against each of McNeill's claims. See generally Mem. Supp. Mot. Dismiss, D.E. 59; Suppl. Mem. Supp. Mot. Dismiss, D.E. 78. It first contends that the collateral attack waiver in McNeill's plea agreement bars him from challenging his sentence. Alternatively, the government maintains McNeill has procedurally defaulted on these claims because he could have raised them on direct appeal. And even if McNeill's motion survives these procedural challenges, the government argues that he has failed to state a plausible claim for relief.
At the March 2023 evidentiary hearing, with McNeill present and represented by counsel, the court heard from both McNeill and his former attorney.
Finn testified first. On the issue of an appeal, Finn explained that McNeill never directed him to file an appeal. Evid. Hr'g Tr. at 26:6-9. Nor did he receive any correspondence from McNeill or his family members after sentencing suggesting that his client wished to lodge an appeal. Id. at 44:20-45:3. In Finn's professional opinion, McNeill's decision not to appeal was wise-based on independent research, Finn concluded that the government could have charged McNeill with more crimes than it did. Id. at 47:13-48:1. By signing his plea agreement, however, McNeill avoided any extra charges and the extra prison time they could bring. But if McNeill had told his attorney to appeal his sentence despite the risk, Finn testified that he would have done so. Id. at 48:2-4.
Turning to the motion to suppress, Finn maintained that he advised McNeill against filing it. Id. at 37:20-25. Drawing on his experience as a state prosecutor, Finn believed that the motion lacked legal support. And as with the appeal, Finn worried that McNeill would be charged with additional offenses if he pursued the motion. Id. at 41:13-42:1. But Finn still drafted and filed the motion after McNeill told him to do so. Id. at 39:3-10. Shortly after Finn filed the motion, however, McNeill had a change of heart-he contacted Finn and instructed him to withdraw it. Id. at 41:68.
McNeill took the stand next. He testified that Finn originally expressed great enthusiasm for the motion to suppress, believing it had merit. Id. at 55:15-56:6. From there, however, Finn's outlook soured. Over the course of several consultations, Finn convinced McNeill that he would likely face additional charges and thus a longer sentence if he pursued the motion. Id. at 56:2057:20. Ultimately, relying on Finn's advice, McNeill asked him to withdraw the motion to suppress. Id. at 57:21-22. And although he repeatedly asked Finn whether anything could be done to challenge the 2018 search after instructing him to withdraw the motion, McNeill understood that, by accepting the government's plea agreement, he had abandoned this argument. Id. at 59:68.
McNeill then explained what happened at sentencing. After the court informed McNeill of his appeal rights, Finn asked him whether he wanted to appeal. Id. at 65:9-12. McNeill did not respond. Id. at 65:17. Nor did he ask Finn to file an appeal before they parted ways at the sentencing hearing. Id. at 86:5-7. He contended, however, that his previous discussions about reviving the search and seizure challenge should have alerted Finn that he wanted to appeal. Id. at 67:17-20. McNeill did not try to contact Finn after sentencing, claiming that he wanted to prepare his legal arguments independently before discussing the appeal with his attorney. Id. at 88:3-21.
McNeill knew that he had 14 days to file a notice of appeal independently, but he did not do so. Id. at 67:6-7, 87:6-8. He claims that he did not hear the court say that the Clerk of Court would file a notice of appeal for free if he asked. Id. at 84:16-20. He also had logistical troubles- after McNeill was sentenced, he only had access to a law library for the first three days of his appeal window. Afterward, he was transferred to another prison and had to follow COVID-19 quarantine procedures, rendering him unable to access self-help materials or a phone. Id. at 89:319. In light of these difficulties and his prior conversations with Finn, McNeill contends that his attorney should have known that he wanted to appeal.
II. Discussion
McNeill maintains that his sentence should be vacated for four reasons: First, Finn should not have withdrawn the motion to suppress. Second, he should have appealed McNeill's sentence. Third, the court miscalculated his base offense level by counting his two state court felony convictions as “controlled substance offenses.” And fourth, the court failed to explain why it imposed the discretionary financial conditions on McNeill's supervised release. After reviewing the evidence, the undersigned concludes that none of McNeill's arguments have merit.
A. Ineffective Assistance of Counsel
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.” U.S. Const. amend. VI. An attorney violates a defendant's right to assistance of counsel if he fails to provide adequate legal assistance. Strickland v. Washington, 466 U.S. 668, 686 (1984). The right to counsel extends to all critical stages of a criminal proceeding, including plea negotiations, trial, sentencing, and appeal. See, e.g., Missouri v. Frye, 566 U.S. 134, 140 (2012); Lafler v. Cooper, 566 U.S. 156, 164-65 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001).
In Strickland, the Supreme Court held that a petitioner must satisfy a two-pronged test to establish an ineffective assistance claim. 466 U.S. at 686-87. First, the petitioner must show that his attorney's performance fell below an objective standard of reasonableness. Id. at 688. In assessing reasonableness, courts must be “highly deferential” to counsel's performance and must make every effort to “eliminate the distorting effects of hindsight”-especially when the defendant voluntarily enters into a plea bargain. Id. at 689; see also Loc Huu Bui v. United States, Nos. 5:10-CR-205-FL & 5:13-CV-258-FL, 2014 WL 582954, at *7 (E.D. N.C. Feb. 13, 2014) (Flanagan, J.) (“[H]indsight judgment of counsel's performance in securing early resolution of a case should be viewed with additional caution.”) (adopting Magistrate Judge's M&R). Thus, the court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]” Strickland, 466 U.S. at 689.
Second, the petitioner must show that he was prejudiced by his attorney's unreasonable performance. Id. at 693. To establish prejudice, a petitioner must show 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 one “sufficient to undermine confidence in the outcome.” Id. Additionally, the difference in outcome as a result of the unprofessional errors must have harmed the petitioner. Id. at 693.
1. Withdrawn Motion to Suppress
McNeill contends that, by withdrawing his motion to suppress the evidence gathered at the October 2018 traffic stop, Finn provided ineffective assistance. Am. Mot. Vacate at 4. The government counters that, by agreeing to a collateral attack waiver, McNeill gave up a chance to make this argument. See Mem. Supp. Mot. Dismiss at 6. McNeill's challenge fails for two reasons.
First, McNeill's challenge is barred by his collateral attack waiver. His plea agreement precludes him from collaterally attacking his conviction or sentence on any ground, subject to certain exceptions. As is relevant here, McNeill may challenge his conviction or sentence for ineffective assistance that he did not know about when he pleaded guilty. Mem. Plea Agreement at 1.
The Fourth Circuit has held that the waiver of a defendant's right to appeal or otherwise attack his sentence may be enforced so long as “the waiver is valid and . . . the issue being appealed is within the scope of the waiver.” United States v. Block, 408 F.3d 162, 168 (4th Cir. 2005). A waiver's validity “depends on whether the defendant knowingly and intelligently agreed to waive the right to appeal.” Id. at 169. When McNeill entered his plea, he testified that he knew he was giving up his right to appeal or collaterally attack his sentence subject to the ineffective assistance exception discussed above. Arraignment Tr. at 20:3-8. Thus, McNeill is bound by the waiver.
But the record reflects that McNeill knew Finn withdrew the motion before he entered his plea. See Evid. Hr'g Tr. at 57:21-22, 59:6-8. So even if Finn's withdrawal of the motion amounted to ineffective assistance, McNeill waived his right to challenge that decision. See, e.g., Milam v. United States, Nos. 5:20-CV-00079-FL-1 & 5:17-CR-00265-FL-1, 2021 WL 1998243, at *5 n.4 (E.D. N.C. May 19, 2021) (Flanagan, J.) (“Where petitioner knew, at the time of his guilty plea, about counsel's decision not to file a motion to suppress the statements he made to investigators, any ineffective assistance of counsel claim predicated upon this decision is barred by the collateralattack waiver.”).
Second, and more importantly, McNeill's argument fails because Finn withdrew the motion at his request. Evid. Hr'g Tr. at 57:21-22. A client who gives his attorney reasonable instructions cannot later claim that the attorney performed ineffectively by following them. See, e.g., Campbell v. Polk, 447 F.3d 270, 283 (4th Cir. 2006) (“[The defendant's attorneys] acted reasonably when they followed their client's firm instructions[.]”); Strickland, 466 U.S. at 691 (“The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.”). After Finn and McNeill discussed the motion to suppress at length, McNeill asked his attorney to withdraw the motion. Evid. Hr'g Tr. at 57:21-22. He cannot now claim that Finn rendered ineffective assistance by following his orders.
McNeill's arguments related to the withdrawal of the motion to suppress fail on both procedural and substantive grounds. Thus, the district court should deny the portion of McNeill's amended motion dealing with the withdrawn motion to suppress.
2. Failure to Appeal
McNeill next alleges that he received ineffective assistance because Finn “failed to file a direct appeal[.]” Am. Mot. Vacate at 4; Mem. Supp. Am. Mot. Vacate ¶ 1, D.E. 74. He points out that a defendant is entitled to relief under § 2255 when he “unequivocally direct[s] his attorney to file a notice of appeal and [the attorney] fail[s] to timely file it[.]” Mem. Supp. Am. Mot. Vacate ¶ 1.
McNeill correctly states the law on this issue. The Supreme Court has “long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citing Rodriquez v. United States, 395 U.S. 327 (1969)). If an attorney “fails to follow his client's unequivocal instruction” to appeal, the court presumes the defendant has been prejudiced even if the appeal would not have succeeded. United States v. Poindexter, 492 F.3d 263, 265, 268 (4th Cir. 2007). This is because the failure to file the notice leads to a forfeiture of the appellate proceeding. Id.
a) Instruction to Appeal
But the facts do not support McNeill's position. By McNeill's own admission, he did not instruct Finn to appeal before, during, or after sentencing. See Evid. Hr'g Tr. at 65:17, 86:5-7. Instead, before he was sentenced, McNeill allegedly asked Finn how he could “appeal the search and seizure issue.” Id. at 67:17-18. Elsewhere, he contends that he asked if there was “anything that [they] could do to get back with the search and seizure[.]” Id. 66:23-24. Although McNeill knew that this argument was foreclosed by his appeal waiver, see id. at 59:6-8, he still maintains that these statements should have alerted Finn that he wanted to appeal after sentencing, id. at 67:14-18.
But McNeill's inquires do not amount to an “unequivocal instruction” to appeal. Poindexter, 492 F.3d at 265. Vague language that might suggest a defendant wants to challenge his sentence does not cut it-an instruction to appeal must be clear. See, e.g., Sweet v. United States, Nos. 7:18-CR-00042 & 7:19-CV-00048, 2021 WL 2604060, at *3, *7 (E.D. N.C. Jan. 13, 2021) (concluding that a request that an attorney “put in some motion[s]” after sentencing was not an unequivocal instruction to appeal), adopted by 2021 WL 2601033 (June 24, 2021); Torres-Eguino v. United States, Nos. 4:11-CR-107 & 4:13-CV-153, 2016 WL 4005758, at *2 (E.D. N.C. July 26, 2016) (finding that a defendant saying “help me” to his attorney at a post-sentencing meeting did not constitute a clear instruction to appeal); Wade v. United States, Nos. DKC 122442 & DKC 10-0574, 2013 WL 3168721, at *24-25 (D. Md. June 19, 2013) (concluding that a discussion about a potential appeal is not an instruction to appeal). Thus, McNeill's repeated questions about the suppression issue do not constitute an unequivocal instruction to appeal.
b) Duty to Consult
At the evidentiary hearing, McNeill-for the first time-suggested that Finn was also ineffective for failing to consult him about an appeal. See Evid. Hr'g Tr. at 91:20-23. But McNeill did not include that argument in his pleadings.
Both his original and amended motions to vacate fault Finn for not filing a direct appeal. Mot. Vacate at 3, D.E. 51 (“Counsel failed to file a direct appeal[.]”); Am. Mot. Vacate at 4 (“Trial counsel failed to file a direct appeal[.]”). And the memorandum in support of McNeill's amended motion suggests that he was entitled to relief because Finn failed to follow his unequivocal instruction to file an appeal. See Mem. Supp. Am. Mot. Vacate ¶ 1. So, too, does his briefing on the government's motion to dismiss. See Resp. Opp'n Mot. Dismiss at 3, D.E. 61; Resp. to Suppl. Mem. Supp. Mot. Dismiss at 2-3, D.E. 82. And the cases he cites in support of this argument deal with attorneys who failed to follow a client's instruction to pursue an appeal. See, e.g., Mem. Supp. Am. Mot. Vacate ¶ 1 (citing Evitts v. Lucey, 469 U.S. 387, 391-405 (1985); Poindexter, 492 F.3d 263).
Since McNeill did not include the consultation issue in his amended motion, it is not before the court. See, e.g., Pipkins v. United States, Nos. 4:08cv66 & 4:07cr58, 2008 WL 11492959, at *2 n.2 (E.D. Va. July 3, 2008) (“Any new arguments presented in petitioner's response that were not raised in petitioner's original § 2255 motion are not properly before this court[.]”); Howard v. United States, Nos. 5:07CV3 & 5:04:CR9-13, 2009 WL 817245, at *6 (N.D. W.Va. Mar. 25, 2009) (“[T]he petitioner did not raise this contention in his original § 2255 petition. Therefore, the petitioner's argument is not properly before this Court.”) (citation omitted); R. Governing § 2255 Proc. for U.S. Dist. Cts. 2(b) (requiring that motions to vacate “specify all the grounds for relief available to the moving party”). Thus, the district court should not consider McNeill's failure to consult argument.
But even if McNeill had properly raised the issue, he would not be entitled to relief. There is no sign that, given these facts, Finn had a constitutional duty to consult McNeill about an appeal.
Although Finn did not speak with McNeill about his appellate rights after sentencing, the two discussed McNeill's right to appeal several times throughout the case. But the court need not determine whether Finn's presentencing explanations were sufficient-he had no duty to consult McNeill about an appeal.
The Supreme Court has recognized that defendants do not always say whether they want to pursue an appeal. In that case, the “better practice is for counsel to consult with the defendant regarding the possibility of an appeal[.]” Flores-Ortega, 528 U.S. at 479. But despite that fact, an attorney's failure to consult his client about an appeal does not always violate the defendant's constitutional rights. Id.
Instead, the Constitution requires an attorney to consult about a defendant's interest in appealing only if either of two circumstances are present. The first arises when counsel has “reason to think . . . that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal)[.]” Id. And second, an obligation to consult arises if the attorney has “reason to think . . . that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Id.
Once the duty to consult arises, the attorney must “advis[e] the defendant about the advantages and disadvantages of taking an appeal, and mak[e] a reasonable effort to discover the defendant's wishes.” Id. at 478. After doing so, an attorney's “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).
If an attorney fails to consult a defendant about an appeal when he should have, the defendant must still show that he suffered prejudice from this error. Flores-Ortega, 528 U.S. at 484. To do so, “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.” Id.
McNeill's claim fails that test-he cannot show that Finn had a duty to consult him. To begin with, McNeill has not shown (or even alleged) that “there is reason to think . . . a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal)[.]” Flores-Ortega, 528 U.S. at 480. To resolve his case, McNeill entered into a plea agreement with the United States that required him to plead guilty to the charge against him. And as part of that plea agreement, McNeill gave up his “right to appeal the conviction and whatever sentence is imposed on any ground[,]” with a few narrow exceptions that are not relevant here.
What's more, even without the appeal waiver, any attempt to pursue an appeal of trafficstop related issues would have been futile because McNeill withdrew the motion to suppress. By doing so, he waived any right to have the issue reviewed by an appellate court, even for plain error. United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014); accord Dupree v. Younger, 598 U.S., 2023 WL 3632755, at *4 (2023) (“Appellate review, by its nature, requires a lower court decision to review.”). So nothing in the facts of this case would have put Finn on notice that a reasonable defendant in McNeill's position would have wanted to appeal.
Nor did McNeill “reasonably demonstrate[] to counsel that he was interested in appealing.” Flores-Ortega, 528 U.S. at 480. McNeill's decision to withdraw the suppression motion, plead guilty, and enter into a broad appeal wavier as part of his plea agreement all strongly weigh against any argument that Finn should have known McNeill wanted to appeal. See id. (“[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.”). And even if McNeill harbored some interest in appealing, he failed to convey that interest to Finn when directly asked by his attorney during sentencing about whether he wanted to pursue an appeal. These factors compel the conclusion that McNeill did not reasonably demonstrate to Finn that he wanted to pursue an appeal.
At sentencing, McNeill told the court that he had discussed his case with Finn and was ready to be sentenced. Sentencing Tr. at 2:10-12. He also personally thanked Finn for helping him throughout his case. Id. at 6:24-7:1.
In sum, McNeill's claim that Finn failed to consult him fails for two reasons: First, the issue is not properly before the court-McNeill did not include it in his amended § 2255 motion.
And second, even if McNeill had properly raised the issue, he cannot demonstrate that Finn had a duty to consult him about an appeal. Thus, the court need not address whether the lack of a consultation prejudiced McNeill, and it should decline to vacate his sentence on this ground.
B. Advisory Guidelines Challenge
McNeill next contends that the court should vacate his sentence because it incorrectly classified him as an armed career offender at sentencing. Like McNeill's earlier arguments, this claim is not persuasive.
The Supreme Court has explained that, while 18 U.S.C. § 2255 allows petitioners to correct certain sentencing mistakes, not “every asserted error of law can be raised” under the statute. Davis v. United States, 417 U.S. 333, 346 (1974). If a § 2255 motion's claims are neither constitutional nor jurisdictional, a district court may only order relief if the alleged sentencing error “was ‘a fundamental defect which inherently results in a complete miscarriage of justice[.]'” Id. (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
In United States v. Foote, 784 F.3d 931 (4th Cir. 2015), the Fourth Circuit-drawing on Supreme Court precedent and canvassing other circuit courts' decisions-determined that a petitioner's career offender designation generally falls outside the ambit of § 2255 review. Id. at 940. McNeill concedes that Foote bars his claim. See Suppl. Mem. Supp. Mot. Dismiss at 8, Resp. to Suppl. Mem. Supp. Mot. Dismiss at 6-7 (admitting that this challenge is not cognizable on collateral review). Thus, the district court should deny McNeill's amended motion to vacate based on his career offender designation.
C. Oral Pronouncement of Conditions
Finally, McNeill challenges the imposition of certain discretionary financial conditions on his supervised release. He says that the court “fail[ed] to articulate allowable reasons for imposing” those conditions. Mem. Supp. Am. Mot. Vacate ¶ 3. According to McNeill, this violates the Fourth Circuit's decisions in United States v. Rogers, 961 F.3d 291, 294 (4th Cir. 2020), and United States v. Singletary, 984 F.3d 341, 342 (4th Cir. 2021).
But, once again, McNeill faces procedural and substantive hurdles to prevailing on this claim. McNeill has procedurally defaulted on these issues by not pursuing them on direct appeal. Yet even if he did, his argument would be frivolous because Rogers and Singletary address the oral announcement of discretionary supervised release conditions at sentencing, not the sufficiency of a court's justification for properly announced conditions.
In general, a petitioner may not bring claims under § 2255 that he could have raised on direct appeal. United States v. Frady, 456 U.S. 152, 167 (1982); Massaro v. United States, 538 U.S. 500, 504 (2003). To overcome this bar, the petitioner must show “cause and actual prejudice” or establish that he is “actually innocent[.]” Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotation marks and citations omitted). Cause for procedural default “turn[s] on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel.” United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999). And although “[t]he Supreme Court has yet to define the exact contours of the prejudice standard in the § 2255 procedural-default context[,]” a petitioner must ordinarily “show that the error ‘worked to his actual and substantial disadvantage.'” United States v. McKinney, 60 F.4th 188, 195 (4th Cir. 2023) (quoting Frady, 456 U.S. at 170).
McNeill could have challenged the imposition of discretionary financial conditions of release on direct appeal. See, e.g., United States v. Rogers, 961 F.3d 291, 294 (4th Cir. 2020) (“On appeal, Rogers argues ”); United States v. Singletary, 984 F.3d 341, 343 (4th Cir. 2021) (“Singletary timely appealed from the judgment.”). But McNeill did not file a direct appeal. Thus, to avoid procedural default, he must establish cause and prejudice. See Bousley, 523 U.S. at 622.
At the evidentiary hearing, McNeill's counsel claimed that Singletary involved a collateral attack under § 2255 rather than a direct appeal. Evid. Hr'g Tr. at 94:19-20. McNeill's counsel is wrong.
Setting cause aside, McNeill fails to establish that he was prejudiced by the court's oral pronouncement of his financial conditions. McNeill contends that his sentencing hearing was deficient under Rogers and Singletary because the court “fail[ed] to articulate allowable reasons for imposing” its discretionary conditions. Mem. Supp. Am. Mot. Vacate ¶ 3. But this is not what Rogers and Singletary require. Those cases held only that the court must orally pronounce a defendant's discretionary conditions of release-not that each condition must be explained to a defendant's satisfaction. See Singletary, 984 F.3d at 345 (“To reiterate, under Rogers, in order to sentence a defendant to a non-mandatory condition of supervised release, the sentencing court must include that condition in its oral pronouncement of a defendant's sentence in open court.”) (citation omitted).
Elsewhere, the Fourth Circuit has held that “the [district] court must explain the rationale for the special conditions it imposes” at sentencing. United States v. Armel, 585 F.3d 182, 186 (4th Cir. 2009). But the court has “broad latitude to impose conditions[,]” and the conditions the court selects need only be “reasonably related to the factors referred to in 18 U.S.C. § 3583(d)(1)[.]” Id. (citations and internal quotation marks omitted).
At McNeill's sentencing hearing, the court announced the discretionary financial conditions. See Sentencing Tr. at 8:19-23. It also provided a reason for the conditions-the court found that McNeill had “some financial issues.” Id. at 8:20. Thus, even if McNeill had appealed under Rodgers, he would not have succeeded. The court should therefore deny his motion to vacate for failure to adequately pronounce the discretionary conditions of his post-incarceration supervised release.
III. Conclusion
For the reasons discussed above, the district court should deny McNeill's amended motion to vacate his sentence (D.E. 73) and grant the government's motion to dismiss (D.E. 58).
McNeill's amended motion to vacate superseded his original motion as the operative pleading. See, e.g., Young v. City of Mount Ranier, 238 F.3d 567, 573 (4th Cir. 2001).
The Clerk of Court must serve a copy of this M&R on each party who has appeared here. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.