Opinion
No. 7:12-CR-37-11FA No. 7:15-CV-191-FA
10-17-2016
MONICA RENTERIA-GONZALEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the court are Petitioner's motion to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255 (Doc. No. 677), and the Government's motion to dismiss Petitioner's motion. (Doc. No. 693.) For the reasons that follow, the Government's motion is GRANTED and Petitioner's motion is DISMISSED in part.
I. BACKGROUND
Petitioner was charged in a Third Superseding Indictment with one count of conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. (Doc. No. 347). On June 19, 2014, Petitioner pled guilty to this count pursuant to a written plea agreement. On June 25, 2015, the court sentenced Petitioner to a term of imprisonment of 135 months to be followed by a term of supervised release of five years. (Doc. No. 638). Petitioner did not appeal her conviction or sentence.
On or about August 25, 2015, Petitioner filed a motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 677). In her filing, Petitioner raises four arguments: (1) that her counsel was ineffective by failing to file a notice of appeal on her behalf when she specifically requested that such appeal be filed; (2) that her counsel was ineffective for failing to challenge both the purity of the drug and the quantity of the drug attributed to Petitioner; (3) that her constitutional rights were violated because she pled guilty without a full knowledge or understanding of the consequences of her plea; and (4) that her counsel was ineffective for failing to explain to Petitioner that she had a right to go to trial, rather than plead guilty. Id. at 4—8.
On November 9, 2015, the Government moved to dismiss Petitioner's motion, arguing that Petitioner's second, third, and fourth arguments failed to state a claim for relief. (Doc. Nos. 693, 694). The Government conceded that Petitioner's first argument—that counsel failed to file a requested appeal—stated a claim for relief and, as a result, the Government requested an evidentiary hearing on this claim. (Doc. No. 694 at 2-3).
On June 17, 2016, Petitioner moved the court to amend her filing to include additional arguments for relief in light of the United States Supreme Court's decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016). (Doc. No. 784). The court granted Petitioner's motion. This court now addresses Petitioner's coalesced Johnson and Welch claim, along with Petitioner's other arguments.
II. APPLICABLE LEGAL STANDARD
The contours of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure ("the Civil Rules") are of paramount importance. To explain the role Rule 12(b)(6) plays, the court commences with the class of motions that Rule 12(b)(6) is mechanized to address: Rule 8(a)(2). Rule 8(a)(2) of the Civil Rules requires plaintiffs to furnish only "a short and plain statement of the claim showing that the pleader is entitled to relief," so that "the defendant [might have] fair notice of what the ... claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).
"The purpose of a motion to dismiss under Rule 12(b)(6) of the [Civil Rules] is to test the legal sufficiency of the complaint, not to resolve conflicts of facts or decide the merits of the action." Rouse v. United States, Nos. 4:13-CR- 00034-F-1, 4:16-CV-00036-F, 2016 WL 4005740, at *1 (E.D.N.C. July 25, 2016) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)). A plaintiff must allege "enough facts to state a claim to relief that is plausible on its face" and "raise a right to relief above the speculative level." Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
The United States Supreme Court has instructed us that "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed 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 the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations and quotation marks omitted). When assessing a motion to dismiss, the court need not "accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Furthermore, in the context of a § 2255 motion, "vague and conclusory allegations . . . may be disposed of without further investigation by the District Court." United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
However, it is incumbent on the federal courts to appreciate what a Rule 12(b)(6) motion to dismiss entails and what it assuredly does not. Courts must be heedful not to conflate the veracity or even accuracy underlying the allegations that a plaintiff has leveled against a defendant with the allegations' likelihood of success. While "the pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action," 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1216, pp. 235-236 (3d ed. 2004), "assum[ing]" of course "that all the allegations in the complaint are true (even if doubtful in fact)," Twombly, 550 U.S. at 555, it is equally true that "Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Courts must allow a well-pleaded complaint to proceed even if it is obvious "that a recovery is very remote and unlikely." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). This is the United States Supreme Court's unambiguous and unmistakable—indeed, verbatim—teaching in Twombly. See Twombly, 550 U.S. at 555. Mindful of these principles, the court advances to analyze Petitioner's claims.
A. Failure to File Notice of Appeal Will Generate an
Evidentiary Hearing.
Petitioner first claims that her counsel was ineffective when he failed to file a notice of appeal on her behalf. The Government notes that Petitioner here states a claim for relief, citing the Fourth Circuit's decision in United States v. Gonzalez, 570 F. App'x 330, 336 (4th Cir. 2014). The Government further requests an evidentiary hearing on this claim. As a result, Petitioner's first ineffective assistance claim shall proceed and the court will hold an evidentiary hearing on this claim.
B. Counsel's Failure to Challenge Drug Quantity and Purity
Does Not Constitute Ineffective Assistance.
Petitioner further claims that her counsel was ineffective for failing to challenge both the purity and quantity of the drugs attributed to her. To succeed on an ineffective assistance of counsel claim under the Sixth Amendment, Petitioner must satisfy both prongs of Strickland v. Washington, 466 U.S. 668, 687—88, 694 (1984). Accordingly, Petitioner must demonstrate that: (1) her "counsel's representation fell below an objective standard of reasonableness," id. at 687—88; and (2) "a reasonable probability"—"a probability sufficient to undermine confidence in the outcome"—exists that "but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694. Petitioner bears the burden of proof on both of these prongs. United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010). The Strickland standard requires us to accord considerable deference to trial counsel and the trial court. There is a reason for this: a "strong presumption" exists "that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Combining the two Strickland prongs, the court observes that counsel's strategic choices at trial and sentencing are "virtually unchallengeable," as long as counsel makes these choices after fully investigating relevant law and facts—or doing so as extensively as the circumstances allow. Strickland, 466 U.S. at 690; see also Yarborough v. Gentry, 540 U.S. 1 (2003) (deference given to attorney's strategic choices). Similarly, counsel's "reasonable" choices about not conducting certain investigations, Strickland, 466 U.S. at 691, and counsel's decisions about which issues to raise on appeal are entitled to deference. See Jones v. Barnes, 463 U.S. 745, 753—54 (1983). "For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every 'colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies [the Sixth Amendment]." Id. at 754.
Petitioner's claim fails both prongs of Strickland. Petitioner does not argue that her counsel's performance fell below an objective standard of reasonableness nor does she state that she would have received a lower sentence had her counsel objected to the drugs attributed to her. She only states that her counsel failed to raise these issues. Perhaps counsel strategically sensed that drawing attention to Petitioner's proximity with the drugs would disserve Petitioner and harm Petitioner's interests. Perhaps counsel believed quite simply that the drugs were so clearly attributable to Petitioner that a challenge would both fail and would cost Petitioner credibility before the court. See Christian v. Ballard, No. 3:05-cv-00879, 2013 WL 4068214, at *15 (S.D.W. Va. June 6, 2013) ("Counsel's failure to make a futile motion cannot be the basis of an ineffective assistance claim.") (citing Moody v. Polk, 408 F.3d 141, 151 (4th Cir. 2005)); see also Lockhart v. Fretwell, 506 U.S. 364, 382 (1993) ("[I]neffective-assistance claims predicated on failure to make wholly frivolous or unethical arguments will generally be dispensed with under Strickland's first prong. . .").
As the Government notes, this argument appears to relate to counsel's performance at the sentencing phase of Petitioner's case.
With respect to Strickland's second prong, Petitioner has not substantiated that this alleged deficiency in counsel's performance actually prejudiced Petitioner. Indeed, Petitioner offers no support for her vague and conclusory allegation and, as a result, the court must dismiss this claim.
C. Petitioner's Failure to Understand the Consequences of Her
Guilty Plea and Counsel's Failure to Explain Petitioner's Right
to Stand Trial Do Not Constitute Error.
With respect to Petitioner's third and fourth claims, she argues that she did not fully understand the consequences of her guilty plea and that her counsel failed to inform her that she had a right to proceed to trial and was unaware that she could choose to plead not guilty. However, the plea colloquy that the court engaged in with Petitioner, who was under oath, directly contradicts these arguments. The court questioned Petitioner extensively about her knowledge of her rights and whether she truly desired to plead guilty:
THE COURT: Do you understand you have the absolute right to plead not guilty to the charges against you and to persist in your plea of not guilty throughout all of the proceedings against you?
PETITIONER: Yes, sir.
* * *
THE COURT: Count Eight of the Indictment to which you are entering a guilty plea charges you with violating Title 21 United States Code Section 846 by conspiring to distribute or possess with intent to distribute more than five kilograms of cocaine.
Has your attorney explained to you that this offense is a felony and if your plea is accepted you will be adjudged guilty of that offense and such adjudication may deprive you of valuable civil rights such as the right to vote, the right to hold public office, the right to serve on a jury and the right to possess a firearm?
PETITIONER: Yes, sir.
THE COURT: Do you understand that if convicted a defendant who is not a United States citizen may face serious immigration consequences such as removal from the United States, denial of citizenship, and denial of admission or readmission to the United States in the future; do you understand all that?
PETITIONER: Yes, sir.
THE COURT: At this point, I'll ask you what your plea is to the charge contained in Count Eight of the Indictment that I just explained to you.
PETITIONER: Yes, sir. Guilty.
* * *
THE COURT: In light of everything I have explained to you, do you consider yourself guilty of that charge?
PETITIONER: Yes, sir.
* * *
THE COURT: Did you then do the acts to which you've pled guilty as charged in Count Eight of the Indictment?
PETITIONER: Yeah. Yes, sir, I did.
THE COURT: Are you pleading guilty because you are, in fact, guilty of that charge?
PETITIONER: Yes, sir.
THE COURT: Do you understand that if you do not plead guilty you're entitled to a speedy and public trial before me and a jury of your peers and that by pleading guilty you've completely waived your right to a trial?
PETITIONER: Yes, sir.
* * *
THE COURT: Do you understand that by pleading guilty you give up -- you relieve the Government of th[e] burden of proving you guilty?
PETITIONER: Yes, sir.
* * *
THE COURT: Do you feel like you understand everything I've been over with you this morning concerning your rights and everything else I've explained to you?
PETITIONER: Yes, sir.
THE COURT: Do you have any second thoughts whatsoever about the wisdom of pleading guilty to this charge?
PETITIONER: No, sir.(Doc. No. 396 at 13-26). Petitioner does not support her claims with any facts in support. Moreover, Petitioner's own statements to the court, made under oath, belie her claims. Consequently, the Government's motion to dismiss is granted as to Petitioner's third and fourth claims.
D. Petitioner's Void-for-Vagueness Claim is Unmeritorious.
Petitioner claims that because her sentence "was enhanced under [United States Sentencing Guidelines (U.S.S.G.) § 2D1.1(b)(1)] (gun enhancement)," Doc. No. 784, it violates the United States Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). Therefore, the material phrase "crime of violence" which Johnson addressed is not even implicated in this case. As a sister court within this Circuit recently has observed, "U.S.S.G. § 2D1.1(b)(1) does not have a residual clause that could be held unconstitutionally vague; instead, it clearly lays out which convictions (all related to drug offenses) could receive the two point enhancement for possessing a dangerous weapon." United States v. Beckham, 2016 U.S. Dist. LEXIS 95025, *4 (D.S.C. July 21, 2016). Just like in Beckham, this indicates that "Johnson cannot serve to invalidate the enhancement received by [Petitioner]." Id.
Petitioner incorrectly refers to U.S.S.G. § 2K2.1 as her basis for relief.
There are other reasons that Johnson is unavailing to Petitioner. Johnson held that because the residual clause of the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), "combin[es] indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony," it is unconstitutionally vague under the Fifth Amendment's Due Process Clause. Id. at 2558. The United States Supreme Court has construed "[t]he void-for-vagueness doctrine [to] prohibit[] the government from imposing sanctions, consistent with the Due Process Clauses of the Fifth and Fourteenth Amendments, 'under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.'" Welch v. United States, 136 S.Ct. 1257, 1262 (2016) (quoting Johnson, 135 S.Ct. at 2556).
The United States Supreme Court rendered Johnson retroactive the ensuing Term in Welch v. United States, 136 S.Ct. 1257 (2016) since the Welch Court deemed Johnson to announce a new substantive rule of constitutional law. In the Welch Court's view, the outcome of the inquiry "depends . . . on whether the new rule itself has a procedural function or a substantive function—that is, whether it alters only the procedures used to obtain the conviction, or alters instead the range of conduct or class of persons that the law punishes." Id. at 1266. Only a new substantive rule or a new "'watershed' rule[] of criminal procedure," id. at 1271—that is to say, a "procedural rule[] 'implicating the fundamental fairness and accuracy of the criminal proceeding,'" id. at 1271 (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990))—ordinarily enables a constitutional rule to be retroactive.
Johnson and therefore Welch are inapposite to Petitioner's void-for-vagueness challenge. For argument's sake, the court assumes it could apply Johnson's void-for-vagueness holding about the definition of a crime to Petitioner's challenge about the sentence that has been imposed on her. Is a constitutional rule concerning the scope of a crime applicable to the terms of the sentence that is imposed? The court understands the United States Supreme Court's decisions collectively to produce this result since, first, irredeemably vague criminal sentences could be characterized as "so standardless that [they] invite[] arbitrary enforcement," Johnson, 135 S.Ct. at 2556, and, second, while "the Guidelines are no longer binding, and the district court must consider all of the factors set forth in § 3553(a) to guide its discretion at sentencing," Peugh v. United States, 133 S.Ct. 2072, 2080 (2013), "'a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.'" Id. (quoting Gall v. United States, 552 U.S. 38, 49 (2007) (citation omitted)). In fact, "[a]s a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark.'" Peugh, 133 S.Ct. at 2080 (quoting Gall, 552 U.S. at 49 (citation omitted)).
However, even if the broader due process and void-for-vagueness principles are to be distilled from Johnson and applied to the U.S.S.G., the argument still does not work in Petitioner's favor. In Johnson, the ACCA's "residual clause" had defined "violent felony" to encompass any felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). To the Johnson Court, it was constitutionally disturbing that "unlike the part of the definition of a violent felony that asks whether the crime 'has as an element the use . . . of physical force,' the residual clause asks whether the crime 'involves conduct' that presents too much risk of physical injury." Johnson, 135 S.Ct. at 2557. On top of this, "the inclusion of burglary and extortion among the enumerated offenses preceding the residual clause confirms that the [district] court's task also goes beyond evaluating the chances that the physical acts that make up the crime will injure someone." Id. The Johnson Court, accordingly, pointed out that "[t]he act of making an extortionate demand or breaking and entering into someone's home does not, in and of itself, normally cause physical injury." Id. By contrast, the §§ 2K2.1 enhancements concerning firearms are clear and well-reticulated and generally contain distinctly identifiable terms. See, e.g., "semiautomatic firearm that is capable of accepting a large capacity magazine" (§§ 2K2.1(a)(1)); "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense" ((§§ 2K2.1(a)(2)). No serious doubt remains, as it did in Johnson, about what the §§ 2K2.1 stipulations entail or do not entail.
Consequently, Petitioner cannot overcome the hurdle that properly considered, the text of U.S.S.G. §§ 2K2.1 simply is not unconstitutionally vague. The Government amply has satisfied its "obligation to provide the 'grounds' of [its] 'entitle[ment] to relief.'" Twombly, 550 U.S. at 555 (citations omitted). For the reasons given, this "obligation," which "requires more than labels and conclusions, and [to satisfy which] a formulaic recitation of the elements of a cause of action . . ." does not suffice has been met by the Government as Movant. Id. (citations omitted).
III. CONCLUSION
For the above reasons, the Government's motion to dismiss, (Doc. No. 693), is GRANTED and Petitioner's § 2255 motion is DISMISSED in part. The only remaining claim from Petitioner's § 2255 motion is her claim that counsel was ineffective in his failure to file a notice of appeal on Petitioner's behalf. The court will hold an evidentiary hearing on this claim on November 15, 2016, at 1:00 P.M., at the United States Courthouse in Raleigh, North Carolina.
The Clerk is directed to send copies of this Order to counsel of record and to Petitioner, pro se.
IT IS SO ORDERED this 17th day of October, 2016.
ENTER:
/s/_________
David A. Faber
Senior United States District Judge