Opinion
5:20-CR-217-FL 5:23-CV-457-FL
09-05-2024
KENDALE TYRONE STRANGE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR. UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on Petitioner Kendale Tyrone Strange's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, [DE-330, -339], and the Government's motion to dismiss, [DE-359]. Petitioner filed a response to the Government's motion. [DE-364]. The matter is fully briefed and ripe for decision. For the reasons stated below, it is recommended that the motion to dismiss be allowed and the petition be dismissed.
I. Procedural History
The Grand Jury charged Strange in four counts of a multi-defendant, thirty-count indictment with conspiracy to distribute and possess with intent to distribute cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) (Count 1); distribution of a quantity of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) (Count 27); possession with intent to distribute a quantity of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) (Count 28); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (Count 29). [DE-8]. Strange, represented by court-appointed counsel, pleaded guilty pursuant to a written plea agreement to Count 29 of the Indictment. [DE-271], The court sentenced Strange to a term of 86 months' imprisonment and three years' supervised release. [DE-273]. Strange appealed his conviction and sentence, [DE-275, -276], and the Court of Appeals dismissed the appeal as to all issues within the scope of the appeal waiver contained in Strange's plea agreement and affirmed the remainder of the district court's judgment. United States v. Strange, No. 23-4003 (4th Cir. Aug. 31, 2023). Strange filed the instant § 2255 petition, [DE-330], which he subsequently refiled on the correct form, [DE-339], and the Government then moved to dismiss Strange's petition, [DE-359], 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 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). This standard applies equally to a Rule 12(b)(6) motion challenging a § 2255 motion. See Rule 12, Rules Governing Section 2255 Proceedings (applying the Federal Rules of Civil Procedure to § 2255 proceedings to the extent such rules are not inconsistent with any statute or the § 2255 rules). 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 ‘entitle[ment] 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 Cnty. 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
Strange brings several claims that can be generally placed into three categories: prosecutorial misconduct related to his indictment; ineffective assistance of counsel related to pretrial motions; and sentencing. Pet. [DE-330, -339], The Government moves to dismiss the claims because they were litigated on appeal or are barred by Strange's plea colloquy or plea waiver. Gov't's Mem. [DE-360] at 10-13.
A. Prosecutorial Misconduct (Claim 1)
Strange contends that the prosecution had an ulterior motive for indicting him, should have conducted a more thorough investigation before charging him in the indictment, and only charged him in the conspiracy to obtain jurisdiction over him and induce him to plead to a lesser offense. Pet. [DE-339] at 4. Strange pleaded guilty pursuant to a written plea agreement, in which he agreed,
To waive knowingly and expressly the right to appeal the conviction and whatever sentence is imposed on any ground, including any appeal pursuant to 18 U.S.C. § 3742, and further to waive any right to contest the conviction or the sentence in any post-conviction proceeding, including any proceeding under 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea. The foregoing appeal waiver does not constitute or trigger a waiver by the United States of any of its rights to appeal provided by law.[DE-271] ¶ 2.c. The appeal waiver, as relevant here, preserved Strange's right to bring a motion based on prosecutorial misconduct “not known to the Defendant at the time of the Defendant's guilty plea.” Id.
Strange's initial appearance, at which he was advised of the charges against him, was held on September 3, 2020, [DE-60], and he pleaded guilty almost two years later on August 4, 2022, [DE-237], after litigating a suppression motion, [DE-101]. The prosecution's alleged failure to conduct a thorough investigation prior to indictment and the unspecified ulterior motive for charging Strange would have reasonably been known to him well before he pleaded guilty, and Strange has offered no basis for the court to find otherwise. The Fourth Circuit on appeal determined that Strange “knowingly and voluntarily pleaded guilty and waived his right to appeal, with limited exceptions, and that the waiver is valid and enforceable.” Strange, No. 23-4003, slip op. at 2. Therefore, the appeal waiver in Strange's plea agreement bars his claim for prosecutorial misconduct related to his indictment. See Phillips v. United States, No. 5:18-CR-435-D-l, 2022 WL 1721450, at *2 (E.D. N.C. May 27, 2022) (finding prosecutorial misconduct claim barred by appeal waiver where the petitioner knew of the basis of the claim at the time of his guilty plea). As for the argument that the prosecution only charged Strange in the conspiracy to obtain jurisdiction over him and to induce him to plead to a lesser offense, the plea agreement stated that the Government would dismiss at sentencing the conspiracy and other counts to which Strange did not plead guilty. [DE-271] ¶ 4.a. Thus, Strange was aware at the time he pleaded guilty that the conspiracy charge would be dismissed. Furthermore, at Strange's change of plea hearing he affirmed that he had not been coerced into pleading guilty. Hr'g Tr. [DE-247] at 18:22-19:7. Accordingly, this claim should be dismissed as barred by the appeal waiver.
B. Ineffective Assistance of Counsel Related to Pretrial Motions (Claims 2-18,20)
Strange raises several ineffective assistance of counsel claims related to pretrial motion practice. He contends counsel was ineffective by failing to (1) file a motion to dismiss the indictment and a motion for discovery prior to the hearing on the motion to suppress; (2) properly investigate, discover, and raise issues in the suppression motion related to his arrest without a warrant in his home; (3) argue for suppression of the drug and gun evidence discovered during an unlawful search; (4) object to the Government's reliance on the good faith exception; (5) challenge the assertion that the searched vehicle was in the curtilage of the home; (6) subpoena the affiants who provided information in the search warrant application; (7) challenge the search warrant based on the reliability of the confidential informant; (8) prepare and argue for a Franks hearing; (9) keep Petitioner informed regarding the suppression motion; and (8) challenge the firearm evidence based on a discrepancy in the serial numbers in the indictment and search warrant. Pet. [DE-339] at 5-21.
Each of the claims Strange raises were known to him at the time of his guilty plea and are barred by his appeal waiver. Strange would have been aware that counsel failed to file a motion to dismiss the indictment and a motion for discovery before he pleaded guilty, which brings those claims within the scope of his appeal waiver. See Gray v. United States, No. 5:10-CR-146-FL-l, 2014 WL 2917044, at *8 (E.D. N.C. June 26, 2014) (“Petitioner's claim as to counsel's failure to move for dismissal of the indictment falls within the scope of the collateral attack waiver because this alleged error occurred prior to the plea hearing and was therefore known to Petitioner at the time of his guilty plea and waived.”). Likewise, the motion to suppress was litigated before Strange entered his guilty plea, and therefore, the defects he asserts regarding counsel's litigation of that motion were also known to Strange when he pleaded guilty and are barred by the appeal waiver. See Ulmer v. United States, No. 5:20-CR-131-FL, 2023 WL 5013039, at *4 (E.D. N.C. May 22, 2023) (finding ineffective assistance of counsel claims based on failure to file pretrial motions was barred by a valid appeal waiver because the claims were known to defendant at the time he pleaded guilty), adopted by, 2023 WL 4865553 (E.D. N.C. July 31, 2023). Accordingly, these claims should be dismissed.
C. Sentencing (Claims 19, 21)
Strange asserted in his initial July 13, 2023 letter to the court that his sentence should be reduced due to a retroactive law effective November 1,2023, that would reduce his offense conduct points from 21 to 17. [DE-330], In his formal petition, Strange also argues that counsel was ineffective at sentencing for failing to argue against a four-point enhancement for use of a firearm in connection with another offense when he only pled guilty to the § 922(g) charge and failing to proceed on the objection that he should not have received two points because he was not on probation or parole at the time of the offense conduct. Pet. [DE-339] at 4, 20, 22.
Strange first contends that he received a four-point enhancement at sentencing that should be removed based on a retroactive change in the law. [DE-330], At sentencing on December 28, 2022, Strange's offense level was increased by four points, pursuant to Sentencing Guidelines § 2K2.1(b)(6)(B), because “defendant used or possessed any firearm or ammunition in connection with another felony.” PSR [DE-261] at 23; Sent. Tr. [DE-291] at 4:6-5:5. The United States Sentencing Commission promulgated amendments to the sentencing guidelines effective November 1, 2023, and the appropriate avenue for relief based on a change in the guidelines is not through collateral attack under § 2255, but rather by motion under 18 U.S.C. § 3582. See Pate v. United States, No. CR 118-008, 2024 WL 3258198, at *4 (S.D. Ga. July 1, 2024) (concluding request for retroactive two-point reduction pursuant to guideline amendment was not cognizable under § 2255); Rich v. United States, No. 111-CR-00096-MRD-LH1, 2017 WL 5075256, at *1 (W.D. N.C. Nov. 3, 2017) (concluding claim for sentencing relief based on application of an amendment to the sentencing guidelines was properly brought under 18 U.S.C. § 3582, not § 2255). Accordingly, this claim should be dismissed.
Strange next argues that counsel was ineffective at sentencing for failing to argue against a four-point enhancement for use of a firearm in connection with another offense when he only pled guilty to the § 922(g) charge. Pet. [DE-339] at 20. In addition to the four-point enhancement, the PSR also indicated that Strange was subject to a two-point enhancement pursuant to Sentencing Guideline § 2K2.1(b)(1)(A), because the offense involved three to seven firearms. PSR [DE-261] at 22. Strange filed an objection to both enhancements, but the Probation Officer found ample justification for application of the enhancements in the PSR. [DE-257]; [DE-261] at 26-28. At the sentencing hearing, defense counsel stated that the parties had worked out an agreement by which the Government would withdraw the two-point enhancement and the defense would withdraw the objection to the four-point enhancement. Sentencing Tr. [DE-291] at 4:6-5:5. Defense counsel, therefore, made a strategic decision to concede the four-point enhancement in exchange for relief on the two-point enhancement rather than risk losing the objection as to both. Such “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690.
It is apparent from the objection that defense counsel had investigated the law and facts relevant to the enhancements at issue. Furthermore, Strange did not contest withdrawal of the objection at sentencing, and defense counsel ultimately achieved a sentence in the middle of the 77 to 96 months range, despite the Government arguing for a sentence at the upper end of the guideline range and the court suggesting that an upward departure beyond 96 months could be considered in light of Strange's background, history, and likelihood of recidivism. Sentencing Tr. [DE-291] at 5:6-12:5. Therefore, given the circumstances, defense counsel's strategy to withdraw the objection to the four-point enhancement was a reasonable strategic choice and counsel was not ineffective. See Richardson v. United States, No. 5:10-CR-152-BO-1, 2014 WL 12726551, at *2 (E.D. N.C. Jan. 15, 2014) (finding counsel's decision to withdraw an objection at sentencing was a presumptively reasonable strategic decision, petitioner ultimately being sentenced at the low end of the guideline range showed the strategy was successful, and petitioner voiced no objection during the sentencing hearing). Accordingly, this claim should be dismissed.
Finally, Strange argues that his counsel was ineffective for failing to proceed on the objection that he should have received one point instead of two because he was not on probation or parole at the time of the offense conduct. Pet. [DE-339] at 22. Strange's criminal history score was increased from 13 to 15, pursuant to Sentencing Guideline § 4A 1.1(d), based on the determination that he committed the instant offense while under a criminal justice sentence. PSR [DE-261 ] at 19. Under the guidelines, a criminal history score of 13 or more establishes a criminal history category of VI. See United States v. Moses, 23 F.4th 347, 350 (4th Cir. 2022) (recognizing that 13 criminal history points establish a criminal history category of VI), cert, denied, 143 S.Ct. 640 (2023). Even if counsel had objected to the two-point enhancement and prevailed, Strange's criminal history category and sentencing guideline would have remained the same. See Strickland, 466 U.S. at 687 (petitioner must show deficient performance and prejudice). Accordingly, Strange cannot demonstrate prejudice from the alleged ineffective assistance, and this claim should be dismissed.
IV. Conclusion
For the reasons stated above, it is recommended that that the motion to dismiss be allowed, and the petition 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 19, 2024 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).