USA v. Morris et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:05CV405-03-V
(3:03CR16-1-V)
MICHAEL TORIANO MORRIS, )
)
Petitioner, )
)
v. ) O R D E R
)
UNITED STATES OF AMERICA, )
)
Respondents. )
____________________________________)
THIS MATTER comes before the Court upon Petitioner’s Motion to Vacate, Set Aside Or
Correct Sentence under 28 U.S.C. § 2255, (Document No. 1), filed September 20, 2005; on the
Government’s Answer to Petitioner’s Motion and Motion for Summary Judgment, (Document No.
5), and on Petitioner’s Response to the Government’s Motion (Document No. 10.)
I. FACTUAL AND PROCEDURAL BACKGROUND
A review of the record reveals that Petitioner was indicted by the Grand Jury for the Western
District of North Carolina on January 29, 2003 for conspiracy to possess with intent to distribute 5
kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846.
On the same day, the Government filed an Information pursuant to 21 U.S.C. § 851, notifying the
Petitioner that the Government would rely in sentencing on his prior conviction for two prior felony
drug convictions. On March 6, 2003 Petitioner and the Government entered into a plea agreement
in which Petitioner plead guilty to the drug conspiracy count and acknowledged that the amount of
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cocaine base for which he was individually responsible was 1.5 kilograms. Petitioner also agreed, as
part of the plea agreement, that the applicable base offense level for purposes of the application of
the United States Sentencing Guidelines was 38 and that he would be subject to a two-level
enhancement for possession of firearms during the course of the conspiracy and a four-level
enhancement based on his role in the offense as manager.
On March 7, 2003, Magistrate Judge Horn conducted a plea colloquy pursuant to Federal
Rule of Criminal Procedure 11. During the colloquy, Judge Horn recited the elements of the offense
to which Petitioner was pleading guilty and informed him that the maximum penalty was mandatory
life imprisonment. Petitioner stated that he understood the elements of the offense and the penalties
he faced and that he was, in fact, guilty of the offense to which he was pleading guilty. Government
counsel recited the terms of the plea agreement, including the Sentencing Guidelines offense level and
enhancements to which the parties agreed, and Petitioner stated that he had consulted with counsel
and that he was fully satisfied with the services of his counsel.
In preparation for Petitioner’s sentencing hearing, the Probation Office prepared a Presentence
Report (“PSR”) on May 27, 2003. As stipulated by the parties in the plea agreement and based on
the quantity of cocaine base for which Petitioner admitted responsibility, the Probation Officer
calculated a base offense level of 38 and increased that offense level by two levels for possession of
a dangerous weapon and by four levels based on Petitioner’s role in the conspiracy as manager,
resulting in an adjusted offense level of 44. The Probation Officer then reduced Petitioner’s offense
level by three levels for acceptance of responsibility, resulting in a total offense level of 41. Based
on Petitioner’s prior felony convictions, the Probation Officer determined that Petitioner was a career
offender, but noted that the adjusted offense level of 44 was higher than that applicable under the
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The sentencing transcript clarifies that the Government withdrew the § 851 notice, not1
because the Government could not establish the two predicate felony offenses, but in an effort to
take Petitioner’s sentence out of the life imprisonment category given that the Government was
unable to make a 5K.1. departure motion due to Petitioner’s cooperation efforts not being what
the Government expected. (Sentencing Transcript at 4-9.)
The Court initially sentenced Petitioner to ten years of supervised release following his2
term of imprisonment, but changed the supervised release term to five years in light of the
Government’s withdrawal of the § 851 notice.
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career offender guideline, resulting in a Guideline range of imprisonment of 360 months to life. The
Probation Officer also noted, however, that the statutorily prescribed term of imprisonment, because
of Petitioner’s prior felony drug trafficking convictions, was life imprisonment.
On August 19, 2004 Petitioner appeared before this Court for sentencing. During the hearing,
Petitioner re-affirmed that he understood the charge against him as well as the applicable penalties,
that he was guilty of the offense to which he had plead guilty and that he was satisfied with the
representation of his attorney. Petitioner’s counsel stated that Petitioner would stipulate to the facts
as set forth in the PSR and Petitioner assured the Court that he had gone over the PSR carefully and
in detail with his attorney. Government counsel then recited the prior felony convictions upon which
the § 851 notice was premised and Petitioner affirmed that he had been convicted as noted. The
Government then withdrew the § 851 notice, requesting that the Court sentence Petitioner to a range
of imprisonment between 360 months and life imprisonment. The Court then sentenced Petitioner1
to 360 months imprisonment to be followed by five years of supervised release. This Court entered2
its judgment on September 22, 2004 and Petitioner did not appeal.
On September 22, 2005 Petitioner filed the instant Motion to Vacate alleging that his counsel
was ineffective because Petitioner was advised by counsel that he faced life imprisonment based on
two predicate convictions but that this advise was in error because one of the convictions was
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obtained when Petitioner was a juvenile and did not result in a sentence of imprisonment exceeding
one year and one month. Petitioner argues that had it not been for the threat of the § 851 notice and
required statutory term of life imprisonment, Petitioner would not have plead guilty.
Petitioner’s counsel, Mr. Peter Anderson, submitted an affidavit in response to Petitioner’s
allegations in which Mr. Anderson stated that after discussing the facts of the case with Petitioner,
Petitioner stated that he would rather plead than go to trial, noting that he had two prior drug
felonies. Mr. Anderson stated that he explained to Petitioner that his prior felonies were “likely to
result in a mandatory minimum of life imprisonment if he were to plead guilty,” to which Petitioner
responded that he wanted to plead guilty and provide substantial assistance, confident that he would
qualify for a sentencing reduction. (Peter Anderson Affidavit ¶ 3.)
Upon careful consideration of the foregoing documents and the controlling legal precedent,
the Court concludes that the government’s motion for summary judgment should be granted and
Petitioner’s Motion to Vacate should be dismissed. That is, the Court finds that the instant record
makes it clear that counsel was not deficient.
II. ANALYSIS
1. Ineffective Assistance of Counsel
With respect to claims of ineffective assistance of counsel, a petitioner must show that
counsel’s performance was constitutionally deficient to the extent that it fell below an objective
standard of reasonableness, and that he was prejudiced thereby. Strickland v. Washington, 466 U.S.
687-91 (1984). In making this determination, there is a strong presumption that counsel’s conduct
was within the wide range of reasonable professional assistance. Id. at 689; see also Fields v.
Attorney Gen. Of Md., 956 F.2d 1290, 1297-99 (4 Cir.), cert. denied, 474 U.S. 865 (1985);th
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Hutchins v. Garrison, 724 F.2d 1425, 1430-31 (4 Cir. 1983), cert. denied, 464 U.S. 1065 (1984);th
and Marzullo v. Maryland, 561 F.2d 540 (4 Cir. 1977), cert. denied, 435 U.S. 1011 (1978).th
Under these circumstances, the petitioner “bears the burden of proving Strickland prejudice.”
Fields, 956 F.2d at 1297, citing Hutchins, 724 F.2d at 1430-31. If the petitioner fails to meet this
burden, a reviewing court need not consider the performance prong.” Fields, 956 F.2d at 1290,
citing, Strickland, 466 U.S. at 697.
Furthermore, in considering the prejudice prong of the analysis, the Court must not grant
relief solely because the petitioner can show that, but for counsel’s performance, the outcome would
have been different. Sexton v. French, 163 F.3d 874, 882 (4 Cir. 1998), cert. denied, 528 U.S. 855th
(1999). Rather, the Court “can only grant relief under ... Strickland if the ‘result of the proceeding
was fundamentally unfair or unreliable.’” Id., quoting Lockhart v. Fretwell, 506 U.S. 364 U.S. 364,
369 (1993).
More critically here, a petitioner who alleges ineffective assistance of counsel following entry
of a guilty plea has an ever higher burden to meet. See Hill v. Lockhart, 474 U.S. at 53-57; Fields,
956 F.2d at 1294-99; and Hooper v. Garraghty, 845 F.2d 471, 475 (4 Cir.), cert. denied, 488 U.S.th
843 (1988). The Fourth Circuit described the petitioner’s additional burden in a post-guilty plea of
ineffective assistance of counsel as follows:
When a [petitioner] challenges a conviction entered after a guilty plea, [the] “prejudice prong
of the [Strickland] test is slightly modified. Such a defendant must show that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”
Hooper, 845 F.2d at 475; accord Hill, 474 U.S. at 59; and Fields, 956 F.2d at 1297.
In evaluating post-guilty plea claims of ineffective assistance, statements previously made
under oath affirming satisfaction with counsel are deemed binding in the absence of “clear and
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In connection with this specific claim of ineffective assistance of counsel, Petitioner also3
claims that his guilty plea was not voluntarily entered into because his attorney incorrectly advised
him that he faced life imprisonment. Because this is essentially the same claim, the Court will
address it all in the context of ineffective assistance of counsel.
In his opposition to the Government’s Motion for Summary Judgment, Petitioner raises4
claims of ineffective assistance of counsel not raised in his Motion to Vacate. The Court will not
consider these new claims of ineffective assistance of counsel raised for the first time in
Petitioner’s Opposition to the Government’s Motion for Summary Judgment except to the extent
that Petitioner raises the claim that his attorney failed to file an appeal on his behalf. This claim is
directly refuted by the evidence submitted by the Government which includes documents between
Petitioner, his counsel and Petitioner’s father, which reflect that Petitioner, after consultation with
his father, elected not to file an appeal. (See Attachments A-C to Anderson Affidavit, attached to
Government’s Motion for Summary Judgment.)
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convincing evidence to the contrary.” Fields, 956 F.2d at 1299, citing Blackledge v. Allison, 431
U.S. 63, 74-75 (1977). Moreover, statements made during Rule 11 proceedings constitute strong
evidence of the voluntariness of a defendant’s plea. United States v. DeFusco, 949 F.2d 114, 119
(4 Cir. 1991).th
A presumption exists that counsel is competent. A defendant seeking post-conviction relief
bears a heavy burden to overcome this presumption. And the presumption is not overcome by
conclusory allegations. Carpenter v. United States, 720 F.2d 546 (8 Cir. 1983). Indeed, theth
defendant bears an even heavier burden where, as here, the claim of ineffective assistance of counsel
follows the entry of a guilty plea.
Turning now to Petitioner’s specific claim, the Court finds that the Petitioner has failed to
demonstrate an entitlement to any relief. Petitioner claims that his counsel was ineffective for
incorrectly advising him that he faced life imprisonment based on two predicate convictions.3 4
Petitioner contends that this information was incorrect because one of the convictions was obtained
when Petitioner was a juvenile and did not result in a sentence of imprisonment exceeding one year
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In fact, because Petitioner’s adjusted base offense level was higher than that of the base5
offense level for a career offender, Petitioner’s adjusted offense level agreed to in his plea
agreement, level 41, was used to determine Petitioner’s guideline sentence and not the offense
level for career offender status. However, the Court notes that Petitioner’s criminal history points
prior to career offender status was 4 points or category III which bumped up to category VI
taking career offender status into account. However, the guideline range for a adjusted base
offense level of 41 is the same for criminal history category of III through criminal history
category VI - 360 to life. Petitioner received a sentence of 360 months imprisonment.
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and one month. Petition contends that if it had not been for the threat of the § 851 notice and
required statutory term of life imprisonment, Petitioner would not have plead guilty.
Petitioner is confused regarding the requirements for predicate offenses pursuant to 21 U.S.C.
§ 841 and predicate offenses pursuant to career offender status. In support of his argument Petitioner
relies on the Fourth Circuit’s decision in United States v. Mason. In Mason, the Fourth Circuit held
that in order to be considered an adult conviction for purposes of career offender status, if the
conviction is more than five years old, the defendant must have received an adult sentence of at least
one year and one month. Id. at 560.
In relying on Mason, however, Petitioner ignores the fact that his Guideline sentence was not
premised on his status as career offender, but rather, on the stipulations he made in his plea5
agreement, in which he specifically agreed to a base offense level of 38 and six levels of enhancements
based on his possession of firearms during the course of the conspiracy and his leadership role in the
conspiracy. His admissions to drug quantity, firearm possession and role in the offense generated his
Guideline range, not his career offender status. Additionally, Petitioner’s reliance on Mason ignores
the fact that his prior felony convictions were not more than five years old, therefore, consistent with
the holding in Mason, U.S.S.G. § 4A1.2(d)(2) applies. Pursuant to 4A1.2(d)(2)an offense committed
prior to age eighteen which resulted in an adult or juvenile sentence imposed within five years of the
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defendant’s commencement of the instant offense may be counted as one point under 4A1.1(c).
This is exactly how the probation officer calculated Petitioner’s criminal history. (See PSR at 9-10.)
The requirements for a predicate offense pursuant to 21 U.S.C. § 841 are different than those
supporting career offender status. A felony drug offense pursuant to 21 U.S.C. § 841(b)(1)(A) is
defined as “an offense that is punishable by imprisonment for more than one year under any law of
the United States or a state of a foreign country that prohibits or restricts conduct relating to narcotic
drugs . . . “ 21 U.S.C. § 802(44). The North Carolina Controlled Substances Act makes clear that
possession with intent to sell or deliver cocaine is a felony offense punishable by more than one year.
N.C. Gen. Stat. § 90-95. The fact that Petitioner was sentenced to less than one year in prison for
his North Carolina State offense is immaterial, because § 802(44) refers to offenses “punishable” by
more than one year imprisonment. United States v. Campos, 163 Fed. Appx. 232 4 Cir. 2006).th
Therefore, Petitioner’s predicate offenses of possession with intent to sell or deliver cocaine were
appropriately considered as predicate offenses pursuant to 21 U.S.C. § 841 of which he received
notice pursuant to 21 U.S.C. § 851. Petitioner then was accurately advised by his counsel and the
Court that he faced a term of life imprisonment due to his predicate felony drug offenses even though
he committed the offenses under the age of eighteen and served less than one year and one month in
prison. The Court is satisfied that the Petitioner’s counsel was not ineffective for advising Petitioner
that he faced a term of life imprisonment due to his prior felony drug offenses and that despite
Petitioner’s current dissatisfaction with his counsel’s performance, Petitioner has failed to establish
the two prong test, outlined in Strickland, necessary to state a claim for relief in connection with his
allegations of ineffective assistance of counsel
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ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that Respondent’s Motion for
Summary Judgment is GRANTED and Petitioner’s Motion to Vacate (Document No. 1) is
DISMISSED.
SO ORDERED.
Signed: August 7, 2006
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