Opinion
2:15-CR-20-D-1 2:20-CV-37-D
01-03-2023
DAVON KELLY BENNETT, 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 referral for evidentiary hearing and memorandum and recommendation on Petitioner Davon Kelly Bennett's claim, pursuant to 28 U.S.C. § 2255, that his counsel failed to advise him of the benefits he could have received by accepting a plea deal or to negotiate a lesser sentence in a plea agreement with the Government. [DE-134] at 8-9; 28 U.S.C. § 636(b)(1)(B); Fed. R. Crim. P. 59(b)(1). An evidentiary hearing was held on October 14, 2022. [DE-162], For the reasons stated below, it is recommended that Bennett's claim be dismissed.
I. PROCEDURAL HISTORY
Bennett was first charged in a criminal complaint with drug trafficking and a firearm offense in September 2015, [DE-1], and he retained Patrick Megaro to represent him, [DE-15]. Megaro filed a motion to suppress in February 2016, which was denied. [DE-23, -32]. In April 2016, a federal grand jury indicted Bennett for conspiracy to distribute and possess with the intent to distribute 5 kilograms or more of cocaine, 280 grams or more of cocaine base (crack), 100 grams or more of heroin, and a quantity of marijuana in violation of 21 U.S.C. § 846; possession with the intent to distribute 500 grams or more of cocaine, 100 grams or more of heroin, and a quantity of marijuana in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); and laundering of monetary instruments in violation of 18 U.S.C. § 1956(a)(1)(B)(i). [DE-36]. Bennett pleaded not guilty, [DE-61], and proceeded to trial where he was convicted on all four counts of the indictment, except the jury did not find Bennett responsible for any crack cocaine, [DE-65], Bennett was sentenced to a total of 300 months' imprisonment. [DE-93]. The judgment was affirmed on appeal by the Fourth Circuit. [DE-110].
Bennett filed the instant § 2255 motion on June 15, 2020, raising several claims of ineffective assistance of counsel, [DE-119], which the Government moved to dismiss, [DE-128]. Bennett responded to the Government's motion to dismiss, [DE-131]. Judge Dever dismissed all claims except the claim that Bennett's counsel failed to advise him of the benefits he could have received by accepting a plea deal or to negotiate a lesser sentence in a plea agreement with the Government. [DE-134] at 8. Bennett asserted that counsel “informed [Bennett] that the evidence in [his] case is weak and that there is a strong possibility of getting a not guilty verdict from the jury” but that Bennett told counsel numerous times that he did not want to go to trial and would have elected to plead guilty to receive a lesser sentence. Pet'r Aff. [DE-119-2] at 1-2. The Government cited a statement by counsel during the sentencing hearing indicating that “there was discussions of a possible plea prior to trial. But the plea would have included a guideline range that was actually in excess of what the Court just found.” Sentencing Tr. [DE-106] at 16; Gov't Mem. [DE-129] at 11. Judge Dever found Bennett had stated a claim and referred the matter for evidentiary hearing and recommendation to include a credibility assessment of Bennett's testimony at the hearing. [DE-134] at 9. The court appointed counsel to represent Bennett at the evidentiary hearing, [DE-135], but Bennett later retained counsel, [DE-156].
IL HEARING TESTIMONY
At the October 14, 2022 evidentiary hearing, the court heard testimony from Bennett and Megaro. On Petitioner's motion, and with no objection from the Government, the court sequestered Megaro during Bennett's testimony. The court also admitted six exhibits offered by the Government, without objection, utilized by both parties at the hearing: Docket Sheet for USA v. Bennett, 2:15-cr-20-lD; Notice of Appearance by Patrick Megaro; Megaro's redacted notes from March 17, 2015 to April 6, 2016; Megaro's redacted notes from April 8, 2016 to October 16, 2019; cover letter and proposed plea agreements; and Megaro's unredacted notes from March 17, 2015 to April 16, 2016 and April 8, 2016 to October 16, 2019. [DE-163].
A. Bennett's Testimony
Bennett is in federal custody in Elkton, Ohio and has served seven years of his 300-month sentence. Hr'g Tr. [DE-165] at 5:6-14. Bennett was originally arrested and charged by the state of North Carolina, he posted bond, and he hired Megaro to represent him on the state charges. Id. at 6:16-7:2. At that time, Bennett lived in Elizabeth City, North Carolina, and Megaro lived in Orlando, Florida. Id. at 7:5-9. A close school friend of Bennett living in Florida found Megaro through an internet search and took Bennett to meet with Megaro at his Orlando office. Id. at 7:10-22. Megaro told Bennett he could represent him on the state charges and could also represent him if he was charged federally. Id. at 8:19-9:3. Bennett paid Megaro $30,000 to represent him, and Megaro told Bennett he would charge an additional $10,000 if the case went to trial. Id. at 10:17-11:6.
Bennett was arrested on federal charges a few months after he first met with Megaro. Id. at 11:7-22. While Bennett was detained in Pitt County pending trial, he was visited by Megaro in person and they discussed some aspects of his case, mostly statements from other individuals that had also been arrested and provided information about Bennett's drug dealing. Id. at 11:23-12:25. At that time, Bennett had no conversations with Megaro about a plea agreement and denied telling Megaro that he did not want to plead guilty or that he insisted on going to trial. Id. at 13:13-18. Rather, Bennett told Megaro he “wanted to plead out to the charges ... on the indictment,” and Megaro responded that there was no rush to plead out and that Bennett should take his time to think about it because he was facing a twenty-year sentence as a first time felon. Id. at 13:19-14: 5. Megaro sent Bennett a large amount of paperwork but Bennett did not go through it all and did not understand it, and Bennett could not recall Megaro ever presenting him with a plea agreement. Id.at 14:11-19. At some point, while Bennett was still housed in Pitt County, Megaro did tell Bennett at an in person meeting about a cooperation plea offer, but Megaro said he did not want to show it to Bennett because Megaro knew Bennett did not want to take such an offer requiring cooperation, and Bennett agreed. Id. at 14:20-15:11.
Bennett was shown two documents entitled Memorandum of Plea Agreement, marked Resp. Exh. 5, one requiring Bennett's cooperation and one not requiring cooperation. Hr'g Tr. [DE-165] at 15:16-18:18. Bennett was aware of the agreement requiring cooperation but not the non-cooperation agreement, and he denied that Megaro reviewed any agreement with him, discussed the potential benefits that Bennett could receive if he pleaded guilty versus going to trial, or discussed the application of the Sentencing Guidelines. Id. at 18:20-19:9. Megaro did discuss trial strategy and that the Government would call witnesses to testify against Bennett, but Megaro did not review any witness statements with Bennett, although Megaro indicated he would crossexamine the witnesses to discredit them. Id. at 19:10-21:1. Megaro came to see Bennett five times, and each time Bennett told Megaro that he wanted to plead out rather than go to trial. Id. at 21:2-5.
Megaro visited Bennett in Wake County just before the trial started and discussed trial strategy but they did not discuss Bennett pleading guilty. Id. at 21:6-13. Bennett did not know that he could plead guilty without a plea agreement or that if he pleaded guilty he could potentially receive a three level reduction off the guideline range for acceptance of responsibility, and Megaro never advised Bennett to plead guilty. Id. at 21:14-22:10.
On cross-examination, Bennett confirmed that he asked his friends in Florida to help him find an attorney in Florida, despite living in North Carolina, and Bennett denied those friends were involved with Bennett's drug trafficking. Id. at 22:15-24:5. Bennett also confirmed that Megaro began representing him in September 2015 in his federal case, but he did not recall Megaro filing a motion to suppress certain statements Bennett had made, and he did not recall discussing those statements with Megaro or attending the suppression hearing. Id. at 24:9-26:14.
The Government's counsel showed Bennett documents marked as Resp. Exh. 5, which contained a copy of a cover letter on Megaro's firm's letterhead dated January 27, 2016, addressed to Bennett at the Pitt County Detention Center that referenced an enclosed plea agreement. Hr'g Tr. [DE-165] at 27:19-28:5. Bennett also acknowledged a shipping record that indicated the parcel was delivered on January 30, 2016, and that he was at the Pitt County Detention Center at that time. Id. at 27:3-13, 28:11-29:4. Bennett then reviewed the Memorandum of Plea Agreement, marked as pages three through thirteen of Resp. Exh. 5, and acknowledged that the offer contemplated Bennett pleading guilty to two counts with a combined fifteen year minimum sentence. Id. at 29:5-30:9. However, Bennett denied that he ever told Megaro that he would not agree to more than a ten-year prison sentence. Id. at 30:10-13. Bennett stated that he wanted to plead guilty but did not want to cooperate. Id. at 30:21-31:21. The Government's counsel then showed Bennett pages fourteen through twenty-three of Resp. Exh. 5, which was a copy of a plea agreement that did not require cooperation, but Bennett denied knowing about it or having read it. Hr'g Tr. [DE-165] at 31:22-33:14. Bennett's counsel pointed out that the plea agreements listed Count One to include methamphetamine, and Bennett affirmed that he had not ever been charged with methamphetamine and had never seen those plea agreements. Id. at 46:2148:20.
Bennett could not recall meeting with Megaro on January 26, 2016, and did not recall discussing pleading to only the marijuana charge, an enhancement for his possible role as a manager or organizer, the statutory minimum and maximum penalties he faced, acceptance of responsibility, a 5K motion, or sentencing ranges, despite being shown Resp. Exh. 3, a copy of Megaro's time records indicating that he spoke with Bennett about many of these issues. Hr'g Tr. [DE-165] at 33:15-35:17.
Bennett was also shown Megaro's time record from June 29, 2016, Resp. Exh. 4 p. 39, stating Megaro met with Bennett, brought in a laptop, summarized recorded phone calls, reviewed every other piece of discovery, discussed strategy and trial procedure, reviewed the most recent plea agreement, offered to attempt to negotiate a new agreement without the gun charge, explained Bennett's sentencing guideline would be very high, and noted that he agreed with Bennett that it did not make sense to plead guilty if he would get twenty years and was “[r]esolved to fight the case to the end.” Hr'g Tr. at 36:20-37:8. Bennett recalled meeting with Megaro with a laptop and discussing trial strategy, how Megaro would discredit witnesses, and that the Government's evidence was weak, but he denied that Megaro summarized the phone calls, reviewed all of the discovery, discussed the most recent plea offer, offered to negotiate a new plea, or discussed his high sentencing guideline range. Id. at 37:9-38:4; 39:8-40:20. Bennett also denied telling Megaro that he would not plead guilty if he would receive a twenty-year sentence, and he testified that he told Megaro that twenty years was a lot but he was ready to take a plea, and Megaro took the case to trial against his wishes. Id. at 40:21-41:19. Bennett also knew that he was not eligible for the safety valve because of the gun charge. Id. at 48:21-49:6.
Bennett believed he met with Megaro at the Edgecombe County Jail the day before his arraignment and trial but did not remember discussing any of the specifics listed in Megaro's time entry marked as Resp. Exh. 4 at 35, including plea bargaining, although Bennett confirmed he thought twenty years was too high for a first felony. Hr'g Tr. [DE-165] at 42:21-44:20.
Bennett admitted that when he was arraigned in October 2016, he entered a plea of not guilty and did not tell the court that he wanted to plead guilty to the charges straight up, that he was unhappy with the advice of Megaro, or that Megaro had not reviewed plea offers with him, advised him of the benefits of pleading guilty, or reviewed his sentencing exposure. Id. at 38:5- 24; 41:20-42:4. However, Bennett did not recall being asked by the court if Megaro provided him with a copy of any plea agreements. Id. at 46:11-13. Bennett, who has no legal training, did not know why he pleaded not guilty, and suggested it was because he had never been in trouble before, aside from committing misdemeanors. Id. at 42:10-16, 46:14-15. Bennett believed Megaro should have advised him to take a plea because he wanted to and was willing to plead straight up, and Bennett relied on Megaro's advice when entering his not guilty plea. Id. at 45:15-45, 46:810. At sentencing, Bennett did not recall his PSR stating a base offense level of 40; rather, he believed Judge Boyle found that his offense level was 36 and then reduced it to 34. Id. at 44:2145:14.
B. Megaro's Testimony
Patrick Megaro is a 45-year-old attorney, who is currently working as an in-house corporate counsel. Id. at 51:12-19. In the 2015-16 timeframe, Megaro maintained a law office in Orlando, Florida and was practicing primarily in the areas of criminal defense, appeals, and post-conviction relief. Id. at 51:20-52:5. In March 2015, Megaro received a call from Bennett's cousin about representing Bennett on state criminal charges in two different North Carolina counties. Id. at 52:6-19. Several months later Bennett was arrested on a federal criminal complaint, and Megaro entered a notice of appearance and went to Greenville, North Carolina to represent Bennett at his probable cause hearing. Id. at 52:20-53:12. Megaro recalled that Bennett was charged initially with a drug trafficking conspiracy carrying a ten years to life sentence, a possession with intent to distribute narcotics count carrying a five to forty year sentence, and a 924(c) gun charge. Id. at 53:13-17. Later a money laundering charge was added by superseding indictment after the defense filed a motion to suppress evidence. Id. at 53:18-54:1. Megaro indicated there had been plea offers from the Government, and Megaro discussed the suppression issue with Bennett several times, including how filing the suppression motion could impact his guideline calculation through the loss of one point for acceptance of responsibility if he chose to accept a plea. Id. at 55:1-10.
Megaro affirmed that he reviewed plea offers with Bennett. Id. at 55:11-14. Megaro recognized his case management system entries regarding Bennett's case, marked Resp. Exh. 3, and explained that the entries were generally made at the time the transaction occurred, that there may also be conversations not entered (e.g., if he took a call on the road), and that he had redacted portions that were non-responsive to what was at issue in 2255 motion to maintain the scope of privilege. Hr'g Tr. [DE-165] at 55:15-57:8. Megaro recalled, consistent with his notes, that he spoke with Bennett about what he was looking for in a plea agreement, that Bennett only wanted to plead to the marijuana charge and would not cooperate, and Megaro had a conversation with Assistant United States Attorney (“AUSA”) Perry about a potential plea. Id. at 57:9-59:9.
Ultimately, without objection, unredacted copies were introduced as Resp. Exh. 6.
Megaro explained to Bennett the difference in the federal system in sentences where there is cooperation versus non-cooperation, Bennett was fully advised that if he chose not to cooperate his sentence would be harsher, and by January 26, 2016, Megaro had discussed with Bennett at least twice potential guideline ranges. Id. at 59:14-25. Megaro and Bennett discussed that Bennett did not qualify for the safety valve due to the gun charge, there were also questions about his criminal history category and whether he occupied a leadership role, and they discussed the possibility of a 5K motion if he cooperated. Id. at 60:16-61:8. Bennett never told Megaro that he wanted to plead straight up to the indictment without a plea agreement, and Bennett was very clearly looking for a ten-year stipulated sentence and rejected the Government's plea offer because he believed twenty years was too long. Id. at 60:1-15.
AUS A Perry initially sent Megaro two plea agreements, one that required cooperation and one that did not, and Megaro told Perry he would pass them along to his client and get back to him. Id. at 61:12-20. Megaro also told Perry that if Bennett decided to go to trial, he would file a suppression motion, and Perry said if a suppression motion was filed the Government would likely supersede the indictment. Id. at 61:21-62:9. AUSA Perry emailed Megaro the plea agreements, and Megaro was certain his paralegal then mailed them to Bennett. Id. at 62:10-22, 64:6-11. Megaro noted there was a typographical error in the case number on the cover page, which referenced the concluded state matters rather than the federal case. Id. at 62:23-63:7. Megaro also acknowledged that there was an error in the plea agreements, drafted by the Government, because Bennett was not charged with a methamphetamine offense, but the elements described what Bennett was actually charged with and they never got far enough into plea negotiations for Megaro to bring the error to AUSA Perry's attention. Id. at 64:12-65:20.
Megaro recalled that he discussed the plea agreements with Bennett by telephone prior to the suppression hearing and was reasonably certain they discussed them again at the courthouse in the holding pen just prior to the start of the suppression hearing, which was noted in his time record. Id. at 66:6-18. Later, on June 29, 2016, Megaro again met with Bennett and, as reflected in the attorney time record, they discussed the minimum and maximum sentence Bennett was facing, they reviewed evidence and witness statements from five or six cooperating witnesses, Megaro took a laptop into the jail in order to show Bennett the evidence, and they reviewed the most recent plea offer made after the superseding indictment. Id. at 66:20-69:16. The third plea offer added a count of money laundering but still contained a mandatory fifteen year charge plus the gun charge. Id. at 69:17-24. Megaro discussed the pros and cons of the plea agreement with Bennett, explained that in his experience Bennett could likely obtain a very significant reduction of sentence depending on his level of cooperation, noted they could see a track record of the cooperating coconspirator's sentences, and discussed the cons, such as extinguishing most appellate rights, that cooperation could fall apart and he could receive a worse sentence, cooperation could be denied, the judge may not honor the agreement, and he may be a known cooperator. Id. at 69:25-72:3. Megaro also offered to attempt to negotiate a new plea agreement without the 924(c) charge because it would reduce Bennett's exposure from a mandatory consecutive five years to a two point enhancement that would likely result in less than five years. Id. at 72:4-19.
Megaro discussed likely potential sentences with Bennett, including how his sentence could be impacted by acceptance of responsibility and the mandatory consecutive five years on top of the guideline range due to the gun charge, Megaro also explained that there are no stipulated sentences in federal court, and Bennett questioned why he would plead guilty to get a twenty-year sentence rather than go to trial. Id. at 72:20-75:2. AUSA Perry would not drop the 924(c) charge and asked again if Bennett would cooperate. Id. at 75:3-19. On the eve of trial, Megaro again asked Bennett about plea bargaining and offered to go back to the Government, but Bennett repeatedly said he was not willing to plead guilty because the projected guideline range was too high. Id. at 75:20-76:22. Bennett never expressed an interest to Megaro in pleading straight up to the indictment with no plea agreement, and Megaro did not recall discussing a straight up plea. Id. at 78:11-23. Bennett's original PSR calculated his base offense level to be 40 with a criminal history level of III, resulting in a guideline range of 360 months to life, but based upon Megaro's objection the court reduced the advisory rage to 210-262 months. Id. at 76:23-11.
On cross examination, Megaro stated he was practicing in both Florida and North Carolina when he was hired by Bennett. Id. at 79:9-11. Megaro explained that he was hired for the state charges but they anticipated a federal indictment would be forthcoming. Id. at 79:12-16. Bennett was ultimately detained on federal charges, and Megaro had meetings with him both by telephone and in person. Id. at 80:16-82:3.
After Megaro forwarded the two proposed plea agreements to Bennett, Megaro received a call from Bennett's cousin saying that Bennett received the plea agreements and that he wanted Megaro to negotiate a ten year stipulated sentence, and later Bennett told Megaro he was not interested in the proposed plea agreements. Id. at 82:4-23. Megaro recalled the first time he discussed cooperation with Bennett was in Orlando when he was retained, and Bennett made very clear he was never going to cooperate, and he persisted in that position when cooperation was brought up at subsequent conversations. Id. at 84:1-15. Megaro acknowledged that Bennett was a high school dropout and that the plea agreements contained legal language, and Megaro reviewed the non-cooperation plea offer page-by-page with Bennett. Id. at 85:2-87:18. Megaro had no independent recollection of the word “methamphetamine” being in the plea agreement and acknowledged Bennett was not charged with methamphetamine. Id. at 87:24-89:14.
Megaro recalled there were a number of, perhaps five or six, cooperating witnesses that testified for the government, AUSA Perry had disclosed their statements prior to trial, Bennett gave Megaro information about them, and they discussed a strategy of trying to discredit them at trial. Id. at 89:15-90:9. Megaro did not advise Bennett to plead guilty or not guilty, but rather provided him information and told him it was his decision and that Megaro would carry out his wishes. Id. at 90:10-91:1. Megaro confirmed that he discussed the advisory sentencing guidelines with Bennett and that he would lose the three-level reduction for acceptance of responsibility by going to trial. Id. at 91:2-3. Megaro did not recall discussing a straight guilty plea, but did recall Bennett wanted to plead guilty if he could get a ten year sentence. Id. 91:4- 10.
At the time of the evidentiary hearing, Megaro was no longer licensed to practice law in North Carolina as a result of disciplinary action taken by the North Carolina State Bar, stemming from a civil case with Judge Boyle in this district where Megaro made a material misstatement and charged excessive fees. Id. at 93:4-20, 94:2-4. The bar disciplinary action was not related to this case. Id. at 95:4-9. Megaro was also facing reciprocal disciplinary proceedings in Florida. Id. at 93:21-1. Megaro could not recall exactly his retainer from Bennett but agreed that a $30,000 fee with another $10,000 if he took the case to trial sounded accurate. Id. at 94:5-19.
III. ANALYSIS
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”).
The Sixth Amendment right to effective assistance of counsel “extends to the pleabargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012). Counsel has a duty to communicate formal offers from the prosecution to the defendant, Missouri v. Frye, 566 U.S. 134, 145 (2012), and “to inform a defendant of the advantages and disadvantages of a plea agreement and the attendant statutory and constitutional rights that a guilty plea would forego,” Libretti v. United States, 516 U.S. 29, 50-51 (1995). Courts have found no evidence of deficient performance in failing to pursue a plea agreement where a defendant was adamant that he was not guilty and would not take a plea. See, e.g, Welch v. United States, 370 Fed.Appx. 739, 742-43 (7th Cir. 2010); Moss v. United States, 323 F.3d 445, 474-75 (6th Cir. 2003) Hardison v. United States, No. 3:07-CR-10-3-R, 2012 WL 6839716, at *13 (W.D. Ky. Oct. 26, 2012), report and recommendation adopted, 2013 WL 139812 (W.D. Ky. Jan. 3, 2013). The Fourth Circuit has found that counsel may be ineffective where counsel's erroneous advice impacts the defendant's plea decision. See United States v. Mayhew, 995 F.3d 171, 177 (4th Cir. 2021) (grossly erroneous advice regarding sentencing exposure that caused a defendant to forgo a plea and take the case to trial was ineffective); OTuel v. Osborne, 706 F.2d 498, 499-501 (4th Cir. 1983) (holding that “gross misinformation” from counsel about parole eligibility, which caused defendant to accept a guilty plea, constituted ineffective assistance of counsel). In order to demonstrate prejudice where a plea offer has lapsed due to ineffective assistance of counsel, the petitioner must establish “a reasonable probability that [he] would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel,” and “that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Frye, 566 U.S. at 147; see Hill n. Lockhart, 474 U.S. 52, 59 (1985) (the Strickland prejudice requirement “focuses on whether counsel's constitutionally ineffective performance affected the plea process.”).
To assess credibility of witnesses, "trial courts consider' variations in demeanor and tone of voice. "' Rahman v. United States, No. 7:08-CR-126-D, 2013 WL 5222160, at *5 (E.D. N.C. Aug. 27, 2013)(quoting Anderson v. City of Bessemer City, N C, 470 U.S. 564,575 (1985)), report and recommendation adopted, 2013 WL 5230610 (E.D. N.C. Sept. 16, 2013). "In addition,' [d]ocuments or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it."' Id. (citing United States v. Marcavage, 609 F.3d 264, 281 (3d Cir. 2010)). "Additional considerations can include the witness's motive to lie and the level of detail in the witness's statements." Id. (citing United States v. Wilson, 624 F.3d 640, 665 (4th Cir. 2010)).
Bennett states in his 2255 petition that counsel failed “to investigate, object, or raise to present or negotiate a plea agreement from the Government for a lesser sentence ... to prevent him from going to trial,” and did not inform him of benefits such as the safety valve and the three-level acceptance of responsibility that would have resulted in a lesser sentence if he had not gone to trial. Pet. [DE-119] at 8; see also Bennett Aff. [DE-119-2], However, although Bennett at the evidentiary hearing denied ever receiving a plea agreement, Bennett admitted that Megaro told him that he had received a plea agreement from the Government that would require Bennett's cooperation but Megaro knew Bennett did not want to hear about it, and Bennett confirmed that he did not want to cooperate. Hr'g Tr. [DE-165] at 14:11-15:6. Bennett also testified that he recalled Megaro discussing the safety valve with him and that he did not qualify because of the gun charge. Id. at 34:19-21, 49:1-6. Thus, Bennett's testimony is not entirely consistent with what is alleged in his petition.
Bennett's testimony is directly contradicted by the testimony of Megaro, who testified to negotiating three plea agreements on Bennett's behalf and discussing each one with Bennett. Id. at 66:6-18, 69:7-72:3. Megaro also testified in detail as to his discussions with Bennett regarding the advantages and disadvantages of pleading guilty pursuant to a plea agreement. Megaro explained that in his experience Bennett could likely obtain a very significant reduction of sentence depending on his level of cooperation and explained the cons, such as extinguishing most appellate rights, cooperation could fall apart and he could receive a worse sentence, cooperation could be denied, the judge may not honor the agreement, and he may be a known cooperator. Id. at 69:2572:3. Megaro also offered to attempt to negotiate a new plea agreement without the 924(c) charge because it would reduce Bennett's exposure from a mandatory consecutive five years to a two-point enhancement that would likely result in less than five years. Id. at 72:4-19. Megaro testified that he discussed likely potential sentences with Bennett, including how his sentence could be impacted by acceptance of responsibility and the mandatory consecutive five years on top of the guideline range due to the gun charge. Id. at 72:20-75:2. Megaro's credibility is bolstered by documentation showing he mailed two plea agreements to Bennett at the Pitt County Jail where
Bennett was housed at the time, Resp. Exh. 5, and by Megaro's contemporaneous notes, which indicate he discussed a possible plea with Bennett on the day of his suppression hearing, Megaro spoke to AUSA Perry attempting to negotiate a plea that included only the marijuana charge and stated Bennett had been fully advised regarding not qualifying for the safety valve and did not want to cooperate, Megaro reviewed a more recent plea agreement with Bennett and offered to attempt to negotiate a new plea agreement without the gun charge but noted Bennett's very high guideline range, Megaro spoke to AUSA Perry attempting to negotiate a better plea and Perry declined, and Megaro spoke to Bennett again about plea bargaining right before trial but Bennett believed the numbers were too high. Resp. Exh. 3 at 1-3; Resp. Exh. 4 at 38-39.
Bennett bears the burden of demonstrating counsel's performance was deficient and that he suffered prejudice. Strickland, 466 U.S. at 689. Bennett's testimony that he told Megaro twenty years was a lot but he wanted to plead guilty and that Megaro did not explain the advantages of taking a plea or present plea offers to him is not credible, where Bennett presented no theory as to why Megaro would not communicate the very plea agreements he worked to negotiate, which provided for a minimum term of fifteen years' imprisonment. See Jackson v. United States, No. 5:07-CR-110-FL-l, 2014 WL 7149635, at *4-5 (E.D. N.C. Dec. 15, 2014). Rather, the evidence supports that Bennett rejected the plea agreements because he thought they carried too high of a sentence in exchange for a guilty plea, and he did not want to cooperate in order to potentially receive a substantially lesser sentence. See White v. United States, No. 5:19-CR-00033-KDB-DCK-1, 2022 WL 16625598, at *9 (W.D. N.C. Nov. 1, 2022) (“Counsel... is not ineffective for failing to obtain a plea offer that a defendant is willing to accept.”) (citing Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (recognizing “there is no constitutional right to plea bargain”)).
Megaro's testimony was detailed and his billing records substantiate that he discussed the plea process with Bennett, negotiated plea agreements, and discussed the plea agreements with Bennett, but Bennett rejected them and chose to go to trial after being advised of his options. See Powell v. United States, No. 5:04-CR-00356-F-l, 2014 WL 7182940, at *19 (E.D. N.C. Dec. 16, 2014) (crediting counsel's testimony over petitioner's regarding whether counsel conveyed a formal plea offer where there was no evidence to support petitioner's self-serving allegations, and counsel's testimony was supported by documentary evidence and counsel's routine practices), aff'd, 850 F.3d 145 (4th Cir. 2017). Bennett's testimony is also contradicted by Megaro's statement to the court at sentencing that there were plea discussions prior to trial but the plea would have included a guideline range that was in excess of what the court found at sentencing and that it was difficult to persuade his client to accept a plea under the circumstances. Sentencing Tr. [DE-106] at 16-17.
The court has also considered that Megaro's license was subsequently suspended after disciplinary action by the North Carolina State Bar. While Megaro admitted that the state bar found he made a material misrepresentation to the court and charged excessive fees in a civil case, there was no evidence presented that Megaro's fee arrangement was unusual or excessive in this case. Furthermore, because Megaro's testimony is corroborated by his notes, the court finds it to be credible. See Saddler v. United States, No. 5:16-CR-251-FL-1, 2022 WL 16708245, at *3 (E.D. N.C. Nov. 4, 2022) (finding counsel's billing records substantiate his testimony).
Accordingly, the court finds that Megaro was not ineffective in his representation of Bennett during plea negotiations, and it is recommended that the claim be dismissed.
Finally, consistent with the court's directive, the undersigned has assessed the credibility of Bennett at the evidentiary hearing. A person commits perjury if “having taken an oath before a competent tribunal ... in any case in which a law of the United States authorizes an oath to be administered, that he will testify . . . truly . .. willfully and contrary to such oath states . . . any material matter which he does not believe to be true.” 18 U.S.C. § 1621. Thus, the issue presented is whether or not Bennett believed his testimony regarding the material events in question to be true. See Sanderson v. United States, No. 7:10-CR-144-D-l, 2020 WL 3979686, at *7 (E.D. N.C. June 2,2020), report and recommendation adopted, 2020 WL 3979657 (E.D. N.C. July 14,2020). While Bennett's testimony at the evidentiary hearing was inconsistent with statements made in his court filings on some points, the events at issue took place five or more years ago, and Bennett testified that he did not recall certain conversations as to several material points. Accordingly, the undersigned does not find that Bennett committed pequry at the hearing.
IV. CONCLUSION
For the reasons stated above, it is recommended that Bennett's § 2255 claim of ineffective assistance of counsel 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 January 17,2023 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).