Rogers v. United States

Andre Matrel Rogers, Petitioner, v. United States of America, Respondent.

Crim. No.: 4:17-cr-00470-RBH-1

Civ. No.: 4:19-cv-01094-RBH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION

November 21, 2019

ORDER

This matter is before the Court on Petitioner Andre Matrel Rogers' pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. See ECF No. 124. The Government has filed a Motion to Dismiss/Motion for Summary Judgment. See ECF No. 138. The Court denies Petitioner's motion and grants the Government's motion for the reasons herein.¹

Background

In May 2017, a federal grand jury indicted Petitioner on one count of conspiracy to distribute and to possess with intent to distribute quantities of cocaine, crack cocaine, and marijuana, in violation of 21 U.S.C. § 846, and three counts of possession with intent to distribute and distribution of a quantity of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). See ECF No. 2. Petitioner was initially represented by Assistant Federal Public Defender William F. Nettles IV, but due to a conflict,Mr. Nettles was relieved and attorney Maria Elias-Williams was appointed to represent Petitioner. See ECF Nos. 18, 62, & 64. In November 2017, the Government filed an information pursuant to 21 U.S.C. § 851(a), seeking to enhance Petitioner's sentence and citing his two prior felony drug offenses. See ECF No. 70.

In January 2018, Petitioner (still represented by Attorney Elias-Williams) pled guilty pursuant to a written plea agreement to one count of possession with intent to distribute and distribution of a quantity of crack cocaine.² See ECF Nos. 79, 80, & 81. Petitioner's presentence report ("PSR") classified him as a career offender based on his (1) 2002 Arkansas conviction for criminal attempt delivery of a controlled substance and (2) 2009 South Carolina conviction for possession with intent to distribute/distribution/manufacturing cocaine base or methamphetamine, first offense. See PSR at ¶¶ 62, 65, 73, 93. His resulting advisory Sentencing Guidelines range was 188 to 235 months' imprisonment.

In April 2018, the Court varied slightly downward—based on a motion filed by Attorney Elias-Williams—and sentenced Petitioner to 170 months' imprisonment followed by six years' supervised release. See ECF Nos. 97, 101, & 107. Judgment was entered on May 2, 2018. See ECF No. 107. Petitioner did not file a direct appeal.

On April 12, 2019,³ Petitioner filed the instant § 2255 motion. See ECF No. 124. Thereafter, Attorney Elias-Williams filed an affidavit addressing her representation of Petitioner. See ECF No. 136. The Government filed a Motion to Dismiss/Motion for Summary Judgment and a supporting memorandum. See ECF Nos. 138 & 139. Petitioner filed a response in opposition to the Government'smotion. See ECF No. 146.

Legal Standard

A prisoner in federal custody may attack the validity of his sentence pursuant to 28 U.S.C. § 2255 by filing a motion in the court that imposed the sentence. For a court to vacate, set aside, or correct a sentence, a petitioner must prove one of the following occurred: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a).

The district court need not hold an evidentiary hearing on a § 2255 motion if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see United States v. Thomas, 627 F.3d 534, 538 (4th Cir. 2010). The determination of whether to hold an evidentiary hearing ordinarily is left to the sound discretion of the district court. Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970). "When the district court denies § 2255 relief without an evidentiary hearing, the nature of the court's ruling is akin to a ruling on a motion for summary judgment." United States v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007).

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Rule 12, Rules Governing Section 2255 Proceedings ("The Federal Rules of Civil Procedure . . . , to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules."). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . ; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or thatan adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). "The evidence must be viewed in the light most favorable to the non-moving party, with all reasonable inferences drawn in that party's favor. The court therefore cannot weigh the evidence or make credibility determinations." Reyazuddin v. Montgomery Cty., 789 F.3d 407, 413 (4th Cir. 2015) (internal citation and quotation marks omitted).

Discussion

Petitioner's § 2255 motion presents three grounds, which the Court will address in turn.

I. Grounds One & Two—Ineffective Assistance of Counsel

Petitioner's first two grounds allege ineffective assistance of counsel. These claims must be reviewed under the two-part test enunciated in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show counsel's performance was deficient and fell below an objective standard of reasonableness. Id. at 687-88. Second, the petitioner must show prejudice, meaning "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." Id. at 694.

Petitioner's ineffective assistance claims relate to his sentence. "Even though sentencing does not concern the defendant's guilt or innocence, ineffective assistance of counsel during a sentencing hearing can result in Strickland prejudice because any amount of additional jail time has Sixth Amendment significance." Lafler v. Cooper, 566 U.S. 156, 165 (2012) (internal quotation marks and brackets omitted). Thus, "counsel may be constitutionally required to object when there is relevant authority strongly suggesting that a sentencing enhancement is not proper." United States v. Carthorne, 878 F.3d 458, 466 (4th Cir. 2017). To prove prejudice in the sentencing context, a petitioner mustdemonstrate "a reasonable probability that the outcome of [the] sentencing would change." Id. at 470 (internal quotation marks omitted).

A. Ground One

Petitioner alleges Attorney Elias-Williams was ineffective for failing to object to his classification as a career offender.⁴ See ECF No. 146 at pp. 11-21; ECF No. 146-5 at pp. 2-3. Specifically, Petitioner contends Attorney Elias-Williams should have argued that his 2002 Arkansas conviction for criminal attempt delivery of a controlled substance—under Ark. Code Ann. § 5-64-401(a)⁵—did not qualify as a "controlled substance offense"⁶ for career offender purposesbecause (1) the Guidelines' definition of "controlled substance offense" excludes attempt crimes and (2) he did not serve any prison time as a result of the 2002 Arkansas conviction. See ECF No. 146 at pp. 14-21; ECF No. 146-5 at p. 3.

The Court concludes Petitioner has not demonstrated deficient performance or prejudice. At the time of Petitioner's 2018 sentencing, Fourth Circuit precedent established that "[a] controlled substance offense also includes the offenses of 'aiding and abetting, conspiring, and attempting to commit such offenses.'"⁷ United States v. Dozier, 848 F.3d 180, 183 (4th Cir. 2017) (quoting USSG § 4B1.2 cmt. n.1); see United States v. Morris, 917 F.3d 818, 823 (4th Cir. 2019) ("A lawyer does not perform deficiently by failing to raise novel arguments that are unsupported by then-existing precedent."). Moreover, "[t]he qualification of a prior conviction as a sentencing predicate does not depend on the sentence a defendant actually received but on the maximum sentence permitted for his offense of conviction."⁸ United States v. Bercian-Flores, 786 F.3d 309, 316 (4th Cir. 2015) (internalquotation marks and brackets omitted). Attorney Elias-Williams was not deficient for making such arguments, and Petitioner has not demonstrated a reasonable probability that the outcome of sentencing would have been different had counsel pursued them. See, e.g., United States v. Smith, 497 F. App'x 269, 274 (4th Cir. 2012) ("Smith cannot show that, but for counsel's failure to object, there is a 'reasonable probability' that he would have received a shorter sentence."). The Court will deny relief as to Ground One.⁹

B. Ground Two

Petitioner alleges Attorney Elias-Williams was ineffective for failing to object and argue that the correct statutory penalty was 21 U.S.C. § 841(b)(1)(D), not 21 U.S.C. § 841(b)(1)(C). See ECF No. 124 at p. 5. This claim is meritless. Petitioner pled guilty to the offense of possession with intent to distribute and distribution of a quantity of crack cocaine; the punishment for this offense is found at 21 U.S.C. § 841(b)(1)(C). Subsection (D) deals with punishment for offenses involving marijuana, hashish, and hashish oil—not crack cocaine—and is inapplicable to Petitioner's offense. He cannot demonstrate deficient performance or prejudice, and the Court will deny relief as to this claim.

II. Ground Three—Factual Basis for Guilty Plea

Petitioner alleges his due process rights were violated because the Court accepted an insufficient factual basis for his guilty plea. See ECF No. 124 at p. 7. As the Government correctly argues, this claim is...