Miller v. United States

DONOVAN QUECELL MILLER Petitioner and Defendant, v. UNITED STATES OF AMERICA Respondent.

No. 7:19-CR-179-D-1

No. 7:21-CV-96-D

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

April 15, 2022

ORDER

James C. Dever, III United States District Judge

On May 24, 2021, Donovan Quecell Miller ("Miller") moved pro se under 28 U.S.C. § 2255 to vacate, set aside, or correct his 64-month sentence [D.E. 53]. On July 6, 2021, the government moved to dismiss Miller's section 2255 motion [D.E. 61] and filed a memorandum in support [D.E. 62]. On July 7, 2021, the court notified Miller of the motion to dismiss, the consequences of failing to respond, and the response deadline [D.E. 63]. See Roseboro v Garrison. 528 F.2d 309, 310 (4th Cir. 1975) (per curiam). Miller did not respond.

On May 17, 2021, Miller moved pro se for compassionate release under the First Step Act ("First Step Act"), Pub. L. No 115-391, § 603(b), 132 Stat. 5194, 5238-41 (2018) (codified as amended at 18 U.S.C. § 3582) [D.E. 49]. On February 4, 2022, Miller, through counsel, filed a memorandum in support [D.E. 64]. On March 11, 2022, the government responded in opposition [D.E. 68] and filed documents in support [D.E. 69]. As explained below, the court grants the government's motion to dismiss, dismisses Miller's section 2255 motion, and denies Miller's motion for compassionate release.

I.

On May 21, 2020, pursuant to a plea agreement, Miller pleaded guilty to possession with intent to distribute a quantity of marijuana (count two), and possession of a firearm in furtherance of a drug trafficking crime (count three). See [D.E. 31, 34]; Rule 11 Tr. [D.E. 58] 35-36. On September 18 2020, the court held Miller's sentencing hearing, adopted the facts set forth in the Presentence Investigation Report ("PSR"), and resolved Miller's objection. See [D.E. 44, 46], The court found Miller's total offense level to be 8, his criminal history category to be n, and his advisory guideline range to be four to ten months' imprisonment on count two and a consecutive 60 months' imprisonment on count three. After thoroughly considering the arguments of counsel and all relevant factors under 18 U.S.C. § 3553(a), the court sentenced Miller to four months' imprisonment on count two and 60 months' consecutive imprisonment on count three, for a total of 64 months' imprisonment. See [D.E. 44, 46]. Miller did not appeal.

II.

In Miller's section 2255 motion, Miller argues that (1) he received ineffective assistance of counsel because his counsel misinformed him of the elements necessary to prove possession of a firearm in furtherance of a drug trafficking crime and thereby rendered his guilty plea not knowing and voluntary; and (2) he is actually innocent of possession of a firearm in furtherance of a drug trafficking crime as charged in count three. See [D.E. 53] 4-7; [D.E. 53-1] 3-5; [D.E. 53-2].

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 complaint'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. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 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 complaint'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. McGill, 11 F.3d 223, 225 (1 st 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); United States v. Dyess, 730 F.3d 354, 359-60 (4th Cir. 2013).

The "Sixth Amendment entitles criminal defendants to the effective assistance of counsel-that is, representation that does not fall below an objective standard of reasonableness in light of prevailing professional norms." Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (per curiam) (quotations omitted). The Sixth Amendment right to counsel extends to all critical stages of a criminal proceeding, including plea negotiations, trial, sentencing, and appeal. See, e.g., Lee v. United States, 137 S.Ct 1958, 1964-65 (2017); Lafler v. Cooper, 566 U.S. 156, 164-65 (2012); Missouri v. Frye, 566 U.S. 134, 140 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001). To state a claim of ineffective assistance of counsel in violation of the Sixth Amendment, Miller must show that his attorney's performance fell below an objective standard of reasonableness and that he suffered prejudice as a result. See Strickland v. Washington 466 U.S. 668, 687-91 (1984).

When determining whether counsel's representation was objectively unreasonable, a court must be "highly deferential" to counsel's performance and must attempt to "eliminate the distorting effects of hindsight" Id. at 689. Therefore, the "court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. A party also must show that counsel's deficient performance prejudiced the party. See Id. at 691-96. A party does so by showing that there is a "reasonable probability" that, but for the deficiency, "the result of the proceeding would have been different." Id. at 694.

When a defendant pleads guilty and later attacks his guilty plea, "to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); see Lee, 137 S.Ct. at 1967. "Surmounting Strickland's high bar is never an easy task, and the strong societal interest in finality has special force with respect to convictions based on guilty pleas." Lee, 137 S.Ct. at 1967 (citations and quotation omitted).

Miller argues he received ineffective assistance of counsel based on counsel's advice about the elements of the charge of possession of a firearm in furtherance of a drug trafficking crime in count three, and therefore his guilty plea to that charge was not knowing and voluntary. Miller's sworn statements during his Rule 11 proceeding contradict this claim, and Miller's sworn statements bind him. See, e.g., Blackledge, 431 U.S. at 74; United States v. Moussaoui, 591 F.3d 263, 299-300 (4th Cir. 2010); United States v. Lemaster, 403 F.3d 216, 221-23 (4th Cir. 2005). At his Rule 11 hearing, while under oath, Miller confirmed he had discussed his case with his lawyer, was fully satisfied with counsel's services, and had received a copy of his indictment See Rule 11 Tr. At 15-16, 28. The court read the charges in the indictment to Miller, including the elements of count three, and Miller confirmed that he understood the charges. See Id. at 21-24, 27. Miller also confirmed that he had read, understood, discussed with counsel, and signed the plea agreement which also listed the elements of each charge, including count three. See Id. at 30-31; Plea Agr. [D.E. 34] 4. The court read the elements of count three to Miller, and Miller confirmed he understood that in order to convict him on count three at a jury trial, the government would have to prove each element by competent evidence beyond a reasonable doubt See Rule 11 Tr. at 24-28. Miller then pleaded guilty to counts two and three and confirmed that he had, in fact committed the offenses. See Id. at 35-39. Accordingly, Miller's guilty plea to count three was knowing and voluntary. Moreover, in light of Miller's guilty plea, the government's proffer at the Rule 11 hearing, and the description of Miller's conduct in the PSR, Miller has not plausibly alleged actual innocence. See Bousley v. United States, 523 U.S. 614, 622-24 (1998); United States v. Pettiford, 612 F.3d 270, 280-85 (4th Cir. 2010): United States v. Mikalajunas, 186 F.3d 490, 492-95 (4th Cir. 1999); PSR ¶¶ 8-10.

As for counsel's performance, Miller has not plausibly alleged deficient performance. Based on Miller's sworn admissions at his Rule 11 hearing, the government's proffer at Miller's Rule 11 hearing about Miller's conduct, and Miller's sworn admission that he committed count three, counsel's advice about count three was within the wide range of acceptable professional conduct See Rule 11 Tr. at 36-38; Strickland, 466 U.S. at 691 ("Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant"); United States v. Moody, 2 F.4th 180, 192 (4th Cir. 2021); United States v. Lomax, 293 F.3d 701, 706 (4th Cir. 2002).

Alternatively even if counsel did not correctly explain the elements of count three to Miller before he pleaded guilty to count three, Miller has not plausibly alleged prejudice. The court corrected any such alleged error during the Rule 11 hearing, and Miller then pleaded guilty to count three. See United States v Akande, 956 F.3d 257, 263 (4th Cir. 2020); United States v. Akinsade, 686 F.3d 248, 253-54 (4th Cir. 2012). Moreover, in light...