Lesane v. United States

1

BROOKS PRENTICE LESANE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 5:19-CR-486-D

No. 5:23-CV-26-D

United States District Court, E.D. North Carolina, Western Division

October 31, 2023

ORDER

JAMES C. DEVER III, United States District Judge

On January 12,2023, Brooks Prentice Lesane (“Lesane” or “petitioner”) moved pro se under 28 U.S.C. § 2255 to vacate, set aside, or correct his 156-month sentence [D.E. 45] and filed a memorandum in support requesting counsel [D.E. 47]. On July 31,2023, the government moved to dismiss [D.E. 56] and filed a memorandum in support [D.E. 57]. On August 1,2023, the court notified Lesane of the motion to dismiss, the consequences of failing to respond, and the response deadline [D.E. 58]. See Roseboro v. Garrison, 528 F.2d 309,310 (4th Cir. 1975) (per curiam). On August 17,2023, Lesane responded in opposition [D.E. 59]. On September 18,2023, Lesane again requested counsel [D.E. 61]. As explained below, the court grants the government's motion to dismiss, dismisses Lesane's motion to vacate, and denies Lesane's requests for appointment of counsel.

I.

On March 16,2020, pursuant to a plea agreement, Lesane pleaded guilty to possession with intent to distribute a quantity of marijuana, a quantity of cocaine, a quantity of cocaine base (crack), and a quantity of heroin (count one) and possession of a firearm by a felon (count three). See [D.E 22,23,40].

On June 18,2020, the court held Lesane's sentencing hearing. See [D.E. 32,41]. The court adopted the facts as set forth in the Presentence Investigation Report (“PSR”) and resolved Lesane's objections. See Sent. Tr. [D.E. 41] 4-10; Fed. R. Crim. P 32(i)(3)(A)-(B). Lesane's counsel argued that Lesane's North Carolina conviction of assault by strangulation was not categorically a crime of violence therefore, Lesane did not qualify as a career offender. See Sent. Tr. 6; PSR ¶¶ 21,31,77. The court held that assault by strangulation qualified as a crime of violence and Lesane qualified as a career offender. See Sent. Tr. 8-10. The court calculated Lesane's total offense level to be 29, his criminal history category to be VI, and his advisory guideline range to be 151 to 188 months' imprisonment on count one and the statutory maximum 120 months' imprisonment on count three. See Id. at 10. After thoroughly considering all relevant factors under 18 U.S.C. § 3553(a), the court sentenced Lesane to 156 months' imprisonment on count one and 120 months' concurrent imprisonment on count three. See Id. at 18-27; [D.E. 34] 2.

On July 2,2020, Lesane appealed. See [D.E. 36]. On January 18,2022, the United States Court of Appeals for the Fourth Circuit enforced the appellate waiver in the plea agreement and dismissed Lesane's appeal. See [D.E. 42,43]. Lesane did not seek review in the Supreme Court.

On January 12,2023, Lesane moved pro se under 28 U.S.C. § 2255 to vacate, set aside, or correct his 156-month sentence [D.E. 45]. In Lesane's memorandum, he argues that (1) prosecutorial misconduct occurred when the government failed to inform Lesane or his counsel about an investigation into certain Raleigh Police Department officers, (2) his trial counsel was ineffective by failing to challenge a trash pull that Raleigh police conducted at Lesane's residence and the resulting search warrant, and (3) his guilty plea was not knowing and voluntary. See [D.E. 47] 2-7. The government moves to dismiss Lesane's motion for failure to state a claim upon which relief can be granted. See [D.E. 56].

II.

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for “failure to state a claim upon which relief can be granted” tests a petition's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662,677-78 (2009); Bell AtL Corp, v. Twombly, 550 U.S. 544,555-63, 570 (2007); Coleman v. Md. Ct. of Appeals, 626 F.3d 187,190 (4th Cir. 2010), affd, 566 U.S. 30 (2012); Giarratano v. Johnson. 521 F.3d 298,302 (4th Cir. 2008); accord Erickson v. Pardus, 551 U.S. 89,93-94 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a petition's legal conclusions. See, e.g., Iqbal, 556 U.S. at 678. Similarly, a court “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal. 556 U.S. at 677-79. Moreover, a court may take judicial notice of public records without converting a motion to dismiss into a motion for summary judgment See, e.g.. Fed.R.Evid. 201(d); Tellabs, Inc, v, Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176,180 (4th Cir. 2009).

In reviewing a section 2255 motion, the court is not limited to the motion itself. The court may consider “the files and records of the case.” 28 U.S.C. § 2255(b); see United States v. Dyess, 730 F.3d 354,359-60 (4th Cir. 2013); United States v. McGill, 11 F.3d 223,225 (1st Cir. 1993). Likewise, a court may rely on its own familiarity with the case. See, e.g.. Blackledge v. Allison, 431 U.S. 63,74 n.4 (1977).

The collateral-attack waiver in Lesane's plea agreement bars his claim of prosecutorial misconduct. In his plea agreement, Lesane 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, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, 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. 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.

[D.E. 23] ¶ 2(c). In light of Lesane's Rule 11 proceeding, the collateral-attack waiver in the plea agreement is enforceable. See [D.E. 40]; [D.E. 42] 1-2; United States v. Copeland, 707 F.3d 522, 528-30 (4th Cir. 2013); United States v. Davis, 689 F.3d 349,354-55 (4th Cir. 2012) (per curiam), abrogated in part on other grounds by Johnson v. United States, 576 U.S. 591 (2015); United States v. Thomsbury, 670 F.3d 532,537 (4th Cir. 2012); United States v. Blick, 408 F.3d 162,168 (4th Cir. 2005). Lesane alleges he knew the basis of his prosecutorial misconduct claim when he pleaded guilty. See [D.E. 45] 5; [D.E. 47] 4-5; [D.E. 61] 1. Accordingly, the waiver bars the prosecutorial misconduct claim.

As for Lesane's involuntary plea claim, Lesane cannot relitigate “issues expressly or impliedly decided by the appellate court.” United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). “Issues previously decided on direct appeal cannot be recast in the form of a section 2255 motion in the absence of a favorable, intervening change in the law.” Reese v. United States, No. 7:08-CR-34, 2014 WL 253440, at *12 (E.D. N.C. Jan. 23, 2014) (unpublished), appeal dismissed, 570 Fed.Appx. 287 (4th Cir. 2014) (unpublished); see Davis v. United States, 417 U.S. 333, 342 (1974); United States v. Walker. 299 Fed.Appx. 273,276 (4th Cir. 2008) (per curiam) (unpublished); United States v. Roane, 378 F.3d 382,396 n.7 (4th Cir. 2004); Boeckenhaupt v. United States, 537 F.2d 1182,1183 (4th Cir. 1976). On direct appeal, the Fourth Circuit concluded that Lesane knowingly and voluntarily pleaded guilty. See [D.E. 42] 1-2. Lesane has not plausibly alleged any new facts challenging his knowledge when he pleaded guilty. See [D.E. 47] 4-5,7 (noting Lesane wanted to challenge the trash pull before he pleaded guilty because “the evidence.. .found in [Lesane's] trash can must have been planted”); [D.E. 61] 1. Accordingly, Lesane is barred from relitigating the voluntariness of his guilty plea.

Alternatively, Lesane did not raise his prosecutorial misconduct and involuntary plea claims on direct appeal. Thus, the general rule of procedural default bars Lesane from bringing these claims under section 2255. See, e.g., Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614,621 (1998); United States v. Fugit. 703 F.3d248,253 (4th Cir. 2012); United States v. Sanders, 247 F.3d 139,144 (4th Cir. 2001), abrogated on other grounds by Clay v. United States, 537 U.S. 522 (2003). Moreover, Lesane has not plausibly alleged “actual innocence” or “cause and prejudice” resulting from the alleged errors about which he now complains. See Bousley, 523 U.S. at 622-24; Coleman v. Thompson, 501 U.S. 722,753 (1991); United States v. Frady, 456 U.S. 152,170 (1982); United States v. Pettiford, 612 F.3d 270,280-85 (4th Cir. 2010); Sanders, 247 F.3d at 144; United States v. Mikalajunas, 186 F.3d 490, 492-95 (4th Cir. 1999). Accordingly, Lesane has procedurally defaulted these claims.

Alternatively, Lesane's prosecutorial misconduct claim fails on the merits. Lesane contends that prosecutorial misconduct occurred because he “was never informed... of the investigation into [Raleigh police officer Omar] Abdullah and his confidential informant or the potential corruption of the officers involved in his case.” [D.E. 45] 4. Lesane alleges that on October 28, 2021, “Abdullah was fired after an investigation revealed he was paying an unreliable confidential informant . . . and planting fake heroin in drug cases,” id., and this information was “critical impeachment evidence in [Lesane's] case.” [D.E. 47] 4.

In assessing a prosecutorial misconduct claim, the court must determine “whether the conduct...