Tyson v. United States

DARYL BERNARD TYSON, Petitioner and Defendant, v. UNITED STATES OF AMERICA, Respondent.

Nos. 4:10-CR-94-D-1, 420-CV-65-D

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

April 25, 2022

ORDER

JAMES C. DEVER, III UNITED STATES DISTRICT JUDGE

On April 21, 2020, Daryl Bernard Tyson (“Tyson” or “petitioner”) moved pro se under 28 U.S.C. § 2255 to vacate, set aside, or correct his 288-month sentence [D.E. 81]. On September 25, 2020, the government moved to dismiss Tyson's section 2255 motion [D.E. 91] and filed a memorandum in support [D.E. 92]. On October 1, 2020, the court notified Tyson of the motion to dismiss, the consequences of failing to respond, and the response deadline [D.E. 93]. See Roseboro V Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam). On October 30, 2020, Tyson filed a memorandum in support of his section 2255 motion [D.E. 95]. On June 2 2021, Tyson 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. 96]. On March 10, 2022, Tyson, through counsel, filed a memorandum in support [D.E. 101]. On April 15, 2022, the government responded in opposition [D.E. 105] and submitted documents in support [D.E. 106]. As explained below, the court grants the government's motion to dismiss, dismisses Tyson's section 2255 motion, and denies Tyson's motion for compassionate release.

I.

On January 10, 2011, pursuant to a plea agreement, Tyson pleaded guilty to conspiracy to > possess with intent to distribute more than 100 grams of heroin (count one) and money laundering by concealment (count three). See [D.E. 22]; Plea Agr. [D.E. 23]. On January 30, 2012, the court held Tyson's sentencing hearing, resolved Tyson's objections, and adopted the facts set forth in the Presentence Investigation Report (“PSR”). See Fed. R. Crim. P. 32(i)(3)(A)-(B); PSR [D.E. 41]; [D.E. 52]. The court calculated Tyson's offense level to be 33, his criminal history category to be VI, and his advisory guideline range for count one to be 235 to 293 months' imprisonment and for count three to be 235 to 240 months' imprisonment. See PSR ¶¶ 57-60. After thoroughly considering the arguments of counsel and all relevant factors under 18 U.S.C. § 3553(a), the court sentenced Tyson to 288 months' imprisonment on count one and 240 months' concurrent imprisonment on count three, for a total term of288 months' imprisonment. See [D.E. 53] 2. Tyson did not appeal.

On March 29, 2016, Sherri R. Alspaugh entered an appearance on Tyson's behalf “for the limited purpose of representation as set forth within Standing Order 15-SO-2.” [D.E. 64]. Standing Order 15-SO-2 charged counsel with determining whether Johnson v. United States, 576 U.S. 591 (2015), affected Tyson's sentence. Alspaugh determined that Johnson did not affect Tyson's sentence because his career offender status did not affect his offense level calculation and moved to withdraw. See [D.E. 65]; [D.E.95-2] 1-2; PSR ¶53. Tyson, however, told Alspaugh that the career offender enhancement affected his criminal history category. See [D.E. 95] 8. Alspaugh responded that Tyson had two controlled substance offenses and that the court properly found him a career offender. See Id. at 9-10; PSR ¶¶ 17, 20. The court granted Alspaugh's motion to withdraw. See [D.E. 66].

On November 6, 2019, Laura S. Wasco entered an appearance on Tyson's behalf for the limited purpose of determining whether Tyson might qualify for relief under the First Step Act See [D.E.71]. Wasco determined that Tyson did not qualify for such relief and moved to withdraw. See [D.E. 72]. The court allowed Wasco to withdraw. See [D.E. 73]. On January 23, 2020, Tyson moved for appointment of counsel to represent him under the First Step Act. See [D.E. 74]. On February 27, 2020, the court denied Tyson's motion. See [D.E. 75].

II

In Tyson's section 2255 motion, Tyson argues that (1) the court erred in applying the career offender enhancement because his discharging a weapon into occupied property conviction is not a career offender predicate, and (2) he received ineffective assistance of post-conviction counsel because Alspaugh failed to make a motion concerning this career offender predicate under Johnson-See [D.E. 81] 4-7; [D.E. 95] 2-16.

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), 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 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 (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); United States v. Dyess, 730 F.3d 354, 359-60 (4th Cir. 2013).

The post-conviction waiver in Tyson's plea agreement bars Tyson's first claim. In the waiver, Tyson agreed

[t]o waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, 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.

Plea Agr. ¶ 2(c). In light of Tyson's Rule 11 proceeding, the waiver is enforceable. See 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); United States v. Thomsbury, 670 F.3d 532, 537 (4th Cir. 2012); United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Tyson's first claim falls within the waiver. Cf. United States v. Goodall, 21 F.4th 555, 561-62 (9th Cir. 2021); United States v, Archie, 771 F.3d 217, 223 (4th Cir. 2014). Accordingly, the waiver bars Tyson's first claim.

Alternatively, Tyson did not appeal, and he procedurally defaulted his career offender guideline claim by failing to raise it on direct appeal. Thus, the general rule of procedural default bars Tyson from presenting this claim 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.3d 248, 253 (4th Cir. 2012); United States v. Sanders, 247 F.3d 139, 144 (4th Cir. 2001). Furthermore, Tyson has not plausibly alleged “actual innocence” or “cause and prejudice” resulting from the alleged error 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, the claim fails.

Alternatively, Tyson argues that the court erred in its advisory guideline calculation by finding him a career offender. Tyson, however, cannot use section 2255 to attack his advisory guideline range retroactively. See, e.g.. United States v. Foote, 784 F.3d 931, 935-36 (4th Cir. 2015); United States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999) (“Barring extraordinary circumstances ... an error in the application of the Sentencing Guidelines cannot be raised in a § 2255 proceeding.”).

Next, Tyson alleges that he received ineffective assistance of post-conviction counsel (i.e., Alspaugh) because she failed, to file a motion challenging one career offender predicate under Johnson. “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) O'er 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., Laflerv. Cooper, 566 U.S. 156, 164-65 (2012); Missouri v. Frye, 566 U.S. 134, 140 (2012). It does not, however, extend to collateral review where ineffective assistance of trial counsel is not at issue. See Davila v. Davis, 137 S.Ct. 2058, 2062 (2017); Martinez v. Ryan, 566 U.S. 1, 11 (2012); Wallace V. Sexton, 570 Fed.Appx. 443, 454 (6th Cir. 2014) (unpublished). Thus, Tyson's claim fails.

Alternatively Beckles v....