Opinion
5:16-CR-192-1FL 5:20-CV-509-FL
04-07-2022
DONTAI DURHAM, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK United States Magistrate Judge
This matter is before the court for consideration of Petitioner's 28 U.S.C. § 2255 motion to vacate [DE ##40, 43]. The Government has moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted [DE #49]. This matter has been referred to the undersigned for memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the Rules Governing Section 2255 Proceedings. For the reasons explained below, the undersigned recommends that the Government's motion to dismiss be granted.
BACKGROUND
On July 15, 2016, Petitioner was charged via criminal complaint with the distribution and possession with intent to distribute cocaine and cocaine base on seven occasions, in violation of 21 U.S.C. § 841(a)(1), and with conspiracy to distribute and possess with the intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846. (Complaint [DE #1].) On August 18, 2016, Petitioner was indicted on six counts of drug violations: three counts charging distribution and possession with the intent to distribute a quantity of cocaine base (counts one, three, and six); one count charging distribution and possession with the intent to distribute a quantity of cocaine base and marijuana (count two); and two counts charging distribution and possession with the intent to distribute twenty-eight grams or more of cocaine base (counts four and five). (Indictment [DE #16].)
On November 16, 2016, Petitioner pleaded guilty, pursuant to a written plea agreement, to counts one and five of the indictment. Under the plea agreement, Petitioner agreed
[t]o waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal the conviction and whatever sentence is imposed on any ground, . . . and further to waive all rights to contest the conviction or sentence in any post-conviction proceedings, including one pursuant to 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....
(Plea Agt. [DE #24] at 1-2.) During the hearing pursuant to Fed. R. Crim. 11, the Government proffered a factual basis for the guilty plea; Petitioner's counsel made no response to the proffer; and Petitioner stated that he did not dispute any of the information proffered by the Government. (Audio of Nov. 16, 2016, Arraignment Hr'g at 2:41 through 2:45.) Before sentencing, Petitioner objected only to Paragraph 60 of the Presentence Report. (Presentence Report (PSR) [DE #31].)
On April 6, 2017, Petitioner was sentenced to concurrent sentences of 135 months' imprisonment on each count and three years of supervised release on count one and four years of supervised release on count five, to run concurrently. (J. [DE #36].) Petitioner did not appeal his conviction or sentence, and the judgment therefore became final on April 21, 2017.
On July 27, 2020, Petitioner filed a letter that the court construed as a motion to vacate, and in response to which the court issued a Castro notice in August 2020. (Letter [DE #40]; Order denying Motion to Appoint Counsel and Castro Notice [DE #39].) After an order from the court advising Petitioner that his initial motion to vacate, vis a vis his July 2020 letter, did not conform to the form for the Rules Governing § 2255 Proceedings, Petitioner filed the instant motion to vacate on October 26, 2020, using the proper form. (Mot. Vacate [DE #43].) The Government filed a motion to dismiss and supporting memorandum on January 19, 2021. (Mot. Dismiss [DE #49]; Mem. Supp. Mot. Dismiss [DE #50].) On January 20, 2021, the court sent Petitioner a letter notifying him of the Government's motion to dismiss and that he had until February 9, 2021, to file a response in opposition to the motion. (Rule 5 Letter [DE #51].) Petitioner has not responded to the Government's motion to dismiss.
DISCUSSION
Under § 2255, there are four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence exceeds the statutory maximum sentence, and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; Hill v. United States, 368 U.S. 424, 426-27 (1962).
In his filings, Petitioner states that Chad Coffey, a former Granville County Deputy Sheriff who “was assigned to [Petitioner's] case, ” violated the Constitution and is under investigation for misusing confidential informants and monetary funds. (Mot. Vacate at 4; see also Letter (stating that Coffey has been recently indicted for obstruction of justice and “illegally coercing a confidential informant”).) Petitioner further states that his wife was contacted by Granville County District Attorney Michael Waters and notified that Petitioner's “case is one of the cases in [Officer Coffey's] corrupt and unlawful practice.” (Mot. Vacate at 5.) Petitioner notes that he could see audiovisual evidence relating to Coffey's improper use of confidential informants in the discovery material for Petitioner's case and that the Granville County Sheriff's Department and Granville County Drug Unit “were under investigation during [Petitioner's] case and plea.” (Id.) In his letter to the court, Petitioner also notes the Granville County Sheriff's Department “for years (prior even to [Petitioner's] case) has displayed [a] wide range of corruption.” (Letter.) Petitioner asks the court to “vacate or set aside” his sentence. (Mot. Vacate at 13.)
Petitioner does not say when his wife was contacted. (Mot. Vacate at 4-5.)
Under the Antiterrorism and Effective Death Penalty Act of 1996, § 2255 claims are subject to a one-year statute of limitations, which runs from the latest of the following:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the
United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255(f)(1)-(4).
The limitation period set forth in § 2255 may be tolled only “where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). For equitable tolling to apply, Petitioner must demonstrate that (1) he has been pursuing his rights diligently, and (2) extraordinary circumstances stood in his way and prevented him from timely filing. Holland v. Florida, 560 U.S. 631, 648 (2010); United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). “The diligence required for equitable tolling purposes is ‘reasonable diligence,' not ‘maximum feasible diligence.'” Holland, 560 U.S. at 653 (citations omitted) (first quoting Lonchar v. Thomas, 517 U.S. 314, 326 (1996); then quoting Starns v. Andrews, 524 F.3d 612, 618 (5th Cir. 2008)).
“[A] guilty plea ‘renders irrelevant-and thereby prevents the defendant from appealing-the constitutionality of case-related government conduct that takes place before the plea is entered' and also ‘relinquishes any claim that would contradict the admissions necessarily made upon entry of a voluntary plea of guilty.'” Ciampa v. United States, Nos. 5:14-CR-197-1FL & 5:16-CV-850-FL, 2018 WL 6584479, at *5 (E.D. N.C. Dec. 14, 2018) (quoting Class v. United States, 138 S.Ct. 798, 805 (2018)), appeal dismissed by 773 Fed.Appx. 143 (4th Cir. 2019). A § 2255 petitioner's “sworn representations as to his guilt to the charged offense made at a plea hearing ‘carry a strong presumption of verity' and ‘constitute a formidable barrier against any subsequent collateral proceedings.'” Richardson v. United States, Nos. 4:11-CR-110-FL & 4:13-CV-130-FL, 2015 WL 4366198, at *3 (E.D. N.C. July 16, 2015) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). A guilty plea is not involuntary or otherwise invalid “merely because the prosecution fail[s] to disclose material impeachment information to the accused prior to his plea of guilty.” Walker v. Johnson, 446 F.Supp.3d 88, 100 (W.D. Va. 2020) (citing United States v. Ruiz, 536 U.S. 622, 629 (2002)); see also Ruiz, 536 U.S. at 633 (“[T]he Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.”).
Petitioner did not file his motion to vacate within one year of any of the circumstances set forth in § 2255(f)(1)-(4). Petitioner was sentenced on April 6, 2017, and judgment was entered the next day. (J.) Petitioner did not appeal, and his judgment became final on April 21, 2017, upon expiration of the fourteen-day period for appealing the judgment. See Clay v. United States, 537 U.S. 522, 532 (2003) (finality attaches when the time for seeking direct review expires). Petitioner had, at the latest, until April 23, 2018, to file a timely § 2255 motion. Petitioner's motion- construing Petitioner's initial letter to the court as said motion-was not filed until July 23, 2020, more than two years beyond the one-year statute of limitations.
Although not received by the court until July 27, 2020, Petitioner's letter is signed and dated July 23, 2020. The letter contains no certification of delivery to prison authorities for mailing, but the envelope in which the letter was received by the court is postmarked July 24, 2020, and appears to have been mailed from FCI Petersburg. Thus, the undersigned liberally construes Petitioner's motion as having been filed on July 23, 2020. See Houston v. Lack, 487 U.S. 266, 276 (1988); O'Neal v. United States, Nos. 5:12-CR-300-1FL & 5:20-CV-576-FL, 2020 WL 6567135, at *1 n.1 (E.D. N.C. Nov. 9, 2020) (assuming § 2255 petitioner placed the motion to vacate in the prison mail system on the day he signed it).
Petitioner claims his motion was filed within one year of the discovery of facts supporting his claim because “the police corruption and charges against the detective did not become public until 2019, two years after [Petitioner's] plea deal.” (Mot. Vacate at 12.) This argument-which goes to whether “facts supporting the claim or claims presented could have been discovered through the exercise of due diligence” as required by § 2255(f)(4)-is not persuasive for several reasons.
First, Petitioner does not allege when Coffey was arrested or indicted on corruption charges, nor does he allege when his wife received notice from the District Attorney. (Letter; Mot. Vacate at 4-5, 12.) Thus, even assuming for the sake of argument that Coffey's arrest or indictment is a “new fact” for purposes of (f)(4), Petitioner has failed to carry his burden to show that the instant motion to vacate was filed within one year after the new fact could have been discovered through the exercise of due diligence. If Coffey was arrested or indicted before July 23, 2019, Petitioner's motion would be untimely even if it was considered a “new fact” under § 2255(f)(4).
Second, the “new facts” Petitioner has alleged, namely that Coffey has been investigated, arrested, and indicted, do not satisfy the requirement in § 2255(f)(4). At the time of his guilty plea, Petitioner was aware of problems associated with Coffey's use of confidential informants. (Mot. Vacate at 5.) Cf. United States v. Fisher, 711 F.3d 460, 466-70 (4th Cir. 2013) (defendant's guilty plea was involuntary where police officer's deliberate lie in search warrant affidavit was not known to the defendant until after his guilty plea and there was a reasonable probability that the evidence obtained from the tainted search warrant induced the defendant to plead guilty). The formal investigation, arrest, and indictment of Coffey may have bolstered Petitioner's ability to impeach Coffey had Petitioner proceeded to trial. See United States v. Chaves, No. 20-4010, 2021 WL 4473394, at *2 (4th Cir. Sept. 30, 2021) (per curiam) (unpublished) (noting that the defendant “could perhaps have used” evidence of a formal investigation into a case-related Drug Enforcement Agency special agent who was under investigation for having an inappropriate relationship with an informant). But the investigation and subsequent prosecution of Coffey “was typical impeachment evidence that the prosecution would not have been required to disclose prior to a guilty plea even if it had been aware of the investigation at the time.” Id. Nor does the usefulness of this information change the fact that Petitioner knew about Coffey's misuse of informants before Petitioner decided to plead guilty. Petitioner has failed to carry his burden to show that the instant motion to vacate is timely under § 2255(f) or that extraordinary circumstances exist to toll the limitations period. Accordingly his § 2255 motion should be dismissed.
C ONCLUSION
For the foregoing reasons, it is RECOMMENDED that the Government's motion to dismiss [DE #49] be GRANTED and Petitioner's motion to vacate [DE ##40, 43] be DISMISSED for failure to state a claim upon which relief can be granted.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the parties. Each party shall have until April 21, 2022, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct 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. (Dec. 2019).
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).