USA v. Addison et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:22-cv-00088-FDW
(3:17-cr-00134-FDW-DSC-15)
MARQUEL MICHAEL CUNNINGHAM, )
)
Petitioner, )
)
vs. ) ORDER
)
UNITED STATES OF AMERICA, )
)
Respondent. )
__________________________________________)
THIS MATTER is before the Court on Petitioner’s Pro Se Motion to Vacate, Set Aside
or Correct Sentence under 28 U.S.C. § 2255 [CV Doc. 1]1 and Petitioner’s “Supplemental Motion
in Support to Vacate, Correct, and/or Set Aside Sentence (2255)” [CV Doc. 3], which the Court
construes as a motion to amend the motion to vacate.
I. BACKGROUND
Pro se Petitioner Marquel Michael Cunningham is a member of the Nine Try Gangsters
Hood of the United Blood Nation (UBN) gang. [CR Doc. 2335 at ¶ 19: Presentence Investigation
Report (PSR)]. On November 26, 2014, Petitioner and another UBN member committed an armed
robbery. [Id. at ¶ 21]. Petitioner was convicted of common law robbery in Cleveland County,
North Carolina, for that offense. [Id.]. Two days after the robbery, Petitioner and other UBN
members displayed gang hand signals and then shot at someone he believed to be a member of a
1 Citations to the record herein contain the relevant document number referenced preceded by either the
letters “CV,” denoting that the document is listed on the docket in the civil case file number 3:22-cv-00088-
FDW, or the letters “CR,” denoting that the document is listed on the docket in the criminal case file number
3:17-cr-00134-FDW-DSC-15.
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rival gang. [Id.]. No one was injured. [Id.]. On November 10, 2016, Petitioner and another gang
member assaulted a different UBN member for violating gang rules. [Id. at ¶ 20].
In May 2017, a federal grand jury indicted Petitioner, along with 82 other individuals,
charging them with Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy for
their membership in the UBN street gang and conspiring to conduct and participate in a
racketeering enterprise through a pattern of racketeering activity that included murder, robbery,
identity theft, wire fraud, bank fraud, and drug trafficking, in violation of 18 U.S.C. § 1962(d)
(Count One). [CR Doc. 3: Bill of Indictment]. The grand jury identified numerous overt acts
performed in furtherance of the conspiracy, including the November 2014 robbery and shooting
and the November 2016 assault. [Id. at 32-33, 58-59]. In addition to the RICO conspiracy charge,
the grand jury also charged Petitioner with attempted murder in aid of racketeering and aiding and
abetting the same, in violation of 18 U.S.C. §§ 1959(a)(5) and 2 (Count Eight), and use and
possession of a firearm, including discharging the firearm, in furtherance of a crime of violence
and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c) and 2 (Count Nine). [Id. at
83-84]. On May 16, 2017, an arrest warrant, which was based on the Indictment, was issued for
Petitioner’s arrest. [CR Doc. 17]. Petitioner was arrested nearly a month later. [6/12/2017 Docket
Entry]. On June 20, 2017, the Court appointed attorney Robert Lonnie Cooper to represent
Petitioner. [6/20/2017 Docket Entry].
In March 2018, after some defendants charged in the original Indictment had entered guilty
pleas, the grand jury returned a Superseding Indictment omitting those defendants. [See CR Doc.
1241: Superseding Indictment]. The charges against Petitioner remained the same. [See id.]. In
September 2018, the parties reached a plea agreement pursuant to which Petitioner agreed to plea
guilty to Count One and the Government agreed to dismiss the remaining counts against Petitioner.
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[CR Doc. 2108: Plea Agreement]. As part of the plea agreement, the parties agreed to jointly
recommend the following:
b. With respect to Count One, pursuant to U.S.S.G. §
2E1.1, the base offense level will be the greater of 19 or the offense
level applicable to the underlying racketeering activity. The
underlying racketeering activity and crimes here include attempted
murder and robbery.
c. The parties agree that pursuant to U.S.S.G. §
2A2.1(a), the base offense level for attempted murder is either 33 or
27. It is the position of the United States that the object of the
offense would have constituted first degree murder, and that the base
offense level of 33 therefore applies pursuant to U.S.S.G. §
2A2.1(a)(1). It is the position of the defendant that the base offense
level is instead 27 pursuant to U.S.S.G. § 2A2.1(a)(2). Accordingly,
the parties reserve the right to argue for the appropriate offense level
at sentencing on the underlying racketeering activity of attempted
murder.
d. The underlying racketeering activity and crimes here
include a robbery for which the defendant was previously sentenced.
Therefore, pursuant to U.S.S.G. § 2E1.1 and Application Note 4, for
purposes of the guideline calculations, this conduct is treated as a
prior sentence under U.S.S.G. § 4A1.2(a)(1) and not as part of the
instant offense. Accordingly, the parties agree that the offense level
for Count One, not including any adjustment for acceptance of
responsibility, is 33 or 27.
[Id. at ¶ 8]. Petitioner waived his rights to contest his conviction and/or sentence through appeal
or post-conviction action, including pursuant 28 U.S.C. § 2255, except for claims based on
ineffective assistance of counsel or prosecutorial misconduct. [Id. at ¶ 17].
Petitioner pleaded guilty in accordance with the plea agreement. [CR Doc. 2154:
Acceptance and Entry of Guilty Plea]. At the plea hearing, Petitioner acknowledged that he
understood that the maximum penalty for RICO conspiracy under 18 U.S.C. § 1962(d) was a term
of imprisonment of 20 years and that the Court could not determine Petitioner’s sentence until
after a probation officer prepared a PSR. [CR Doc. 2935 at 6-8: Sentencing Tr.]. Petitioner also
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acknowledged that he and his lawyer discussed how the U.S. Sentencing Guidelines might apply
to Petitioner’s case. [Id. at 9]. The Government reviewed the material terms of the plea agreement,
including the parties’ agreement that the underlying racketeering activity for the RICO conspiracy
included attempted murder and robbery and the parties’ respective positions regarding the base
offense levels corresponding to those crimes. [Id. at 12-13]. The Government also noted the
parties’ agreement that, for purposes of the guidelines calculation, the robbery was to be treated as
a prior sentence and not as part of the instant offense, and that, therefore, the base offense level for
Count One was 33 or 27. [Id. at 13]. Petitioner affirmed that he understood the terms of his plea
agreement, including the waiver of his appellate and post-conviction rights; that no one had
threatened, intimated, or forced him to enter a guilty plea; and that no one had made promises of
leniency or a light sentence outside the plea agreement to induce him to plead guilty. [Id. at 16-
18]. Petitioner also testified that he was satisfied with the services of his attorney. [Id. at 18]. The
Magistrate Judge accepted Petitioner’s guilty plea, finding that it was knowing and voluntary. [Id.
at 19].
Before sentencing, a probation officer prepared a PSR. [CR Doc. 2335]. The probation
officer recommended a base offense level of 33, finding that the object of the conspiracy would
have constituted first degree murder, with a three-level reduction for acceptance of responsibility,
for a total offense level (TOL) of 30. [Id. at ¶¶ 47, 54-56]. The probation officer calculated that
Petitioner had earned eight criminal history points from prior convictions, including three points
for a 2014 conviction for attempted breaking and entering for which probation was revoked and
he received an eight- to 19-month sentence; three points for the 2014 common law robbery
conviction for which he was sentenced 12 to 24 months; and one point each for his prior larceny
and simple assault offenses. [Id. at ¶¶ 59-63]. Petitioner also earned two additional criminal
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history points because Petitioner committed the instant offense while serving a prior criminal
justice sentence – for a total of 11 points, which placed him in criminal history category V. [Id. at
¶¶ 64-65]. With a TOL of 30 and a criminal history category of V, the guidelines advised a range
of 151 to 188 months’ imprisonment. [Id. at ¶ 89].
Petitioner objected to the PSR on various grounds not relevant here. [See Doc. 2335 at 34-
36, Docs. 2330, 2605, 2811]. At sentencing, Petitioner confirmed that the answers he had given
more than two years earlier at his plea hearing were true and correct. [CR Doc. 2939 at 3-4]. The
Court affirmed the Magistrate Judge’s finding that Petitioner’s plea was knowing and voluntary
and the acceptance of Petitioner’s guilty plea. [Id. at 5-6]. The Court also independently found,
as a matter of fact, that Petitioner’s plea was knowingly and voluntarily made. [Id. at 6].
After hearing extensive testimony by Amy Lail, a Cleveland County Sheriff’s Office
sergeant, and arguments of counsel, the Court determined that the object of the conspiracy for
sentencing purposes would have constituted first-degree murder and adopted the recommended
base offense level of 33. [Id. at 55-57]. The Court implicitly adopted the three-level reduction for
acceptance of responsibility and noted the criminal history category of V, which yielded a range
of 151 to 188 months. [Id. at 59]. Ultimately the Court sentenced Petitioner to a term of
imprisonment of 180 months, near the top of the guidelines range, citing Petitioner’s violent
criminal history, his lack of respect for the law, the need for general and specific deterrence, and
the need for just punishment. [Id. at 76-80; CR Doc. 2827 at 2: Judgment]. Petitioner directly
appealed and the Fourth Circuit affirmed. United States v. Cunningham, 839 Fed. App’x 820 (4th
Cir. 2021).
Petitioner timely filed the pending motion to vacate. [CV Doc. 1]. He argues that his trial
counsel provided ineffective assistance by failing to challenge his criminal history score. [Id. at
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4; CV Doc. 1-1 at 1]. On March 21, 2022, still within a year from his judgment becoming final,
Petitioner filed a “Supplemental Motion” in support of his motion to vacate in which he asserts
several additional grounds for relief.2 [CV Doc. 3]. Petitioner argues that his conviction is illegal
because no valid arrest warrant was issued and no indictment was presented to a grand jury; that
his attorney failed to disclose Brady material, the arrest warrant, discovery, grand jury minutes, or
affidavits in support of his arrest; and his attorney was ineffective in the plea proceeding because
he told Petitioner that he would receive a 70-month sentence and threatened him into pleading
guilty. [Id. at 1-2]. Petitioner also argues that he never committed a federal offense and that he
has been forced into servitude. [Id. at 2]. Petitioner requests appointment of counsel and an
evidentiary hearing. [Id. at 2; CV Doc. 1-1 at 24]. For relief, Petitioner seeks to be resentenced,
presumably under what he contends is the correct criminal history category. [CV Doc. 1-1 at 23-
24]. The Government timely responded to Petitioner’s motion. [CV Doc. 5]. Petitioner has not
timely replied.
This matter is now ripe for adjudication.
II. STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to
promptly examine motions to vacate, along with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims
set forth therein. After examining the record in this matter, the Court finds that the arguments
presented by Petitioner can be resolved without an evidentiary hearing based on the record and
governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
2 The Court will construe Petitioner’s “Supplemental Motion” as a motion to amend his motion to vacate,
which the Court will grant.
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III. DISCUSSION
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions,
the accused has the right to the assistance of counsel for his defense. See U.S. CONST. amend.
VI. To show ineffective assistance of counsel, Petitioner must first establish a deficient
performance by counsel and, second, that the deficient performance prejudiced him. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In making this determination, there is “a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689; see also United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010).
Furthermore, in considering the prejudice prong of the analysis, the Court “can only grant relief
under . . . Strickland if the ‘result of the proceeding was fundamentally unfair or unreliable.’”
Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v. Fretwell, 506 U.S. 364,
369 (1993)). Under these circumstances, the petitioner “bears the burden of affirmatively proving
prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the petitioner fails to meet
this burden, a “reviewing court need not even consider the performance prong.” United States v.
Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), opinion vacated on other grounds, 218 F.3d 310 (4th
Cir. 2000).
To establish prejudice in the context of a guilty plea, a petitioner 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.” Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007) (quoting Hill
v. Lockhart, 474 U.S. 52, 59 (1985)). In evaluating claims under § 2255, statements made by a
defendant under oath at the plea hearing carry a “strong presumption of verity” and present a
“formidable barrier” to subsequent collateral attacks. Blackledge v. Allison, 431 U.S. 63, 73-74
(1977). “[C]ourts must be able to rely on the defendant’s statements made under oath during a
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properly conducted Rule 11 plea colloquy.” United States v. Lemaster, 403 F.3d 216, 216, 221-
22 (4th Cir. 2005). Indeed, “in the absence of extraordinary circumstances, the truth of sworn
statements made during a Rule 11 colloquy is conclusively established, and a district court should
dismiss … any § 2255 motion that necessarily relies on allegations that contradict the sworn
statements.” Id. at 221-22.
When a defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings
conducted prior to entry of the plea.” United States v. Moussaoui, 591 F.3d 263, 279 (4th Cir.
2010). Thus, a knowing and voluntary guilty plea “forecloses federal collateral review” of prior
constitutional deprivations, including allegations of ineffective assistance of counsel that do not
affect the voluntariness of the plea. See Fields v. Att’y Gen. of Md., 956 F.2d 1290, 1294-96 (4th
Cir. 1992); accord United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997); Wilson v. United
States, 962 F.2d 996, 997 (11th Cir. 1992); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). A
guilty plea is valid when it “represents a voluntary and intelligent choice among the alternative
courses of action open to the defendant.” Burket v. Angelone, 208 F.3d 172, 190 (4th Cir. 2000)
(citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)).
When the ineffective assistance claim relates to a sentencing issue, the petitioner must
demonstrate a “‘reasonable probability’ that his sentence would have been more lenient” but for
counsel’s error. Royal v. Taylor, 188 F.3d 239, 249 (4th Cir. 1999) (quoting Strickland, 466 U.S.
at 694)). If the petitioner fails to meet this burden, the “reviewing court need not even consider
the performance prong.” United States v. Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), opinion
vacated on other grounds, 218 F.3d 310 (4th Cir. 2000).
Petitioner primarily argues that his attorney was ineffective for failing to challenge
Petitioner’s criminal history points. Petitioner claims that the PSR’s criminal history point
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computation was incorrect as to the 2014 breaking and entering and the 2014 common law robbery
convictions. [CV Doc. 1-1 at 6]. Petitioner argues that the 2014 robbery conviction should not
have been included in the criminal history computation “because it was specifically charged in the
RICO conspiracy count as a predicate offense … for which Petitioner pled guilty.” [Id. at 7-8].
Petitioner contends that since he participated in racketeering
acts in furtherance of the UBN enterprise, including robbery that
was a part of the common scheme or plan and substantially
connected to the conspiracy, this robbery should have been counted
at best as relevant conduct under U.S.S.G. Section 1B1.3 and cmt.
note 9, but not as a prior sentence which added erroneously 3-points
to Petitioner’s criminal history.
In sum, the robbery furthered the enterprises source of
income, as the UBN’s primary source of income in the Western
District of North Carolina area derived from illegal activity
including robbery.
Therefore, it is Petitioner’s position that the sentence for
robbery cannot be considered as a prior sentence under Section
4A1.2(a) but must be considered as only relevant conduct because
it was in furtherance of part of the instant offense in the conspiracy.
[CV Doc. 1-1 at 10-11 (internal citations omitted) (emphasis in original)].
Under the guidelines, § 4A1.1 computes a defendant’s criminal history score based in part
on his “prior sentences.” U.S.S.G. § 4A1.1. Application Note 1 to § 4A1.2 defines “prior
sentence” as “a sentence imposed prior to sentencing on the instant offense, other than a sentence
for conduct that is part of the instant offense.” U.S.S.G. § 4A1.2, App. Note 1. Therefore,
generally, a defendant’s prior convictions that were based on conduct that later forms the basis for
a federal conviction cannot be used to increase that defendant’s federal sentence. See United States
v. Gross, 199 Fed. App’x 219, 244 (4th Cir. 2006).
RICO claims, however, present an exception to this general rule.
Section 2E1.1 of the sentencing guidelines provides the offense
level calculation for violations of 18 U.S.C. § 1962, which
[Petitioner] was convicted of violating. Application Note 4 of §
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2E1.1 establishes that prior convictions that form “part of a ‘pattern
of racketeering activity’” can be “treat[ed] as a prior sentence under
§ 4A1.2(a)(1) and not as part of the instant offense.” U.S.S.G. §
2E1.1, Application Note 4. See United States v. Marrone, 48 F.3d
735, 738-39 (3d. Cir. 1995) (holding that RICO predicate acts can
be used to compute criminal history score). Therefore, prior
convictions are treated differently in RICO cases and can be used to
increase a defendant’s sentence even though they involve the same
conduct underlying the RICO charge.
Id. (emphasis added). As such, the “prior sentence” for Petitioner’s 2014 robbery conviction was
properly included in the computation of Petitioner’s criminal history points. Moreover, Petitioner
agreed as part of his plea agreement, consistent with U.S.S.G. § 2E1.1 and Application Note 4,
that the robbery would be “treated as a prior sentence under U.S.S.G. § 4A1.2(a)(1) and not as part
of the instant offense.” [CR Doc. 2018 at ¶ 8(d)]. His attorney, therefore, could not challenge the
criminal history computation without risking breaching the plea agreement. This claim will be
dismissed.
Petitioner also argues that his attorney was ineffective for failing to object to the three
criminal history points assigned for Petitioner’s prior sentence for resisting arrest and underage
drinking offenses. [CV Doc. 1-1 at 17-20; see CR Doc. 2335 at ¶ 59]. This claim is wholly without
merit. The three points assigned were for Petitioner’s attempted breaking and entering conviction,
not for underage drinking or resisting arrest, which was dismissed. [CR Doc. 2335 at ¶ 59].
Petitioner was originally sentenced to four to 14 months for breaking and entering, which was
suspended for 24 months of probation. [Id.]. Petitioner’s probation was revoked, however, and
he was sentenced to eight to 19 months imprisonment. [Id.]. As such, he properly earned three
criminal history points for that offense. See U.S.S.G. §§ 4A1.1(a), 4A1.2(b)(1), (k)(1).
Because the PSR, which was accepted by the Court, correctly calculated Petitioner’s
criminal history score, he can show neither deficient performance, nor prejudice from his counsel’s
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failure to challenge the score. See Strickland, 466 U.S. at 687-88; Royal, 188 F.3d at 249. The
Court, therefore, will deny and dismiss Petitioner’s claims of ineffective assistance of counsel on
this issue.
Petitioner also argues that his conviction is illegal because no valid arrest warrant was
issued and no indictment was presented to a grand jury; that his attorney failed to disclose Brady
material, the arrest warrant, discovery, grand jury minutes, or affidavits in support of his arrest;
that his attorney was ineffective in the plea proceeding because he told Petitioner that he would
receive a 70-month sentence and coerced him into pleading guilty; and that that he never
committed a federal offense and has been forced into servitude. [CV Doc. 3 at 1-2].
Petitioner’s vague and conclusory assertions on these issues are completely insufficient to
establish a right to relief under § 2255 and the Court dismisses them on this ground alone. See
United States v. Dyess, 730 F.3d 354, 359-60 (4th Cir. 2013) (holding it was proper to dismiss §
2255 claims based on vague and conclusory allegations). Moreover, Petitioner waived all pre-plea
ineffective assistance counsel claims when he knowingly and voluntarily pleaded guilty, see Fields
v. Att’y Gen. of Md., 956 F.2d 1290, 1294-96 (4th Cir. 1992), and failed to show prejudice from
these ineffective assistance claims in any event, see Strickland, 466 U.S. at 687-88. Petitioner also
waived his right to challenge his conviction and sentence as part of his plea agreement, see United
States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005), and provided sworn testimony during his
plea colloquy that directly contradicts some of these claims, see Lemaster, 403 F.3d at 221-22.
Finally, Petitioner procedurally defaulted many of these claims by failing to raise them on direct
appeal. See United States v. Linder, 552 F.3d 391, 397 (4th Cir. 2009). These claims, therefore,
will be dismissed.
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Petitioner’s request for appointment of counsel and for an evidentiary hearing are denied
as moot.
IV. CONCLUSION
For the foregoing reasons, the Court denies and dismisses Petitioner’s Section 2255 motion
to vacate.
IT IS, THEREFORE, ORDERED that:
1. Petitioner’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255 [Docs. 1, 3] is DENIED and DISMISSED.
2. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of
appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338
(2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when relief is
denied on procedural grounds, a petitioner must establish both that the dispositive
procedural ruling is debatable and that the petition states a debatable claim of the
denial of a constitutional right).
IT IS SO ORDERED.
Signed: June 10, 2022
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