Blocker v. United States
| Decision Date | 15 January 2015 |
| Docket Number | Criminal No. 5:08-00944-MBS |
| Court | U.S. District Court — District of South Carolina |
| Parties | Tyrone Blocker, #17221-171, Movant, v. United States of America, Respondent. |
This matter is before the court pursuant to Tyrone Blocker's ("Movant") pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("motion to vacate"), as well as his motion to amend the motion to vacate. ECF Nos. 1728 & 1833. The United States of America ("Respondent") opposes the motion to vacate and moves the court to grant it summary judgment. ECF Nos. 1761-62. Respondent did not file an opposition to the motion to amend.
Movant is a federal prisoner currently incarcerated at the Federal Prison Camp in Atlanta, Georgia. ECF No. 1810. On February 18, 2009, Respondent named Movant in a 23-defendant, 42-count Third Superseding Indictment wherein Movant was charged in four counts. Movant was charged in Count 1 for conspiring to possess with intent to distribute, as well as distributing, five kilograms or more of cocaine and fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. ECF No. 596. Movant was also charged in Count 32 with using a communication facility to facilitate the commission of a felony under the Controlled Substances Act, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. Id. Additionally, Movant was chargedin Count 37 with distributing a quantity of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), as well as in Count 41, with aiding and abetting in the possession with intent to distribute a quantity of cocaine within a thousand feet of a school and playground in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860(a), and 18 U.S.C. § 2. Id. On September 30, 2009, in accordance with the terms of a written plea agreement, Movant entered a plea of guilty to the lesser included offense in Count 1—conspiracy to distribute 1500 grams or more of cocaine—and Count 41 of the indictment. ECF No. 929.
As a result of his plea, Movant faced a statutory minimum term of five years imprisonment and a maximum term of 40 years imprisonment, as to Counts 1 and 41. ECF No. 921 at 2. A Presentence Investigation Report ("PSR") was prepared by the United States Probation Office. Based on his prior criminal history, Movant received four criminal history points. Movant received one criminal history point for his conviction for possession of marijuana in violation of S.C. Code Ann. § 44-53-370. Movant also received one criminal history point for his conviction for failing to stop for a blue light in violation of S.C. Code Ann. § 56-5-750. Movant also received an additional two points for being on state probation at the time of the offense, which elevated his criminal history category to Level III. ECF No. 1386 at 14-15 ¶¶ 32-37. As to Count 1, Movant was attributed 1,908.12 grams of cocaine powder for a base offense level of 26. Movant received a two-level gun enhancement because he possessed a firearm in connection with his drug distribution activities. Id. at ¶¶ 21, 26, 47, 53. Movant's sentence was also subject to a two-level increase for obstruction pursuant to U.S.S.G. § 3C1.1, for an adjusted offense level of 30. ECF No. 1386 at ¶¶ 24, 28, 29, 50, 56. As to Count 41, Movant received a base level of 27 due to the amount of cocaine powder attributed to him for Count 1. See U.S.S.G. § 2D1.2(a). Due to the gun and obstructionenhancements that were also applied in Count 1, Movant's adjusted offense level after the addition of the enhancements was 31, as to Count 41. Also, despite Movant's statement of acceptance of responsibility, the United States Probation Office ("USPO") did not recommend a sentence reduction for acceptance of responsibility because of Movant's refusal to take a polygraph examination in compliance with the terms of his proffer agreement. ECF No. 921 at 13 ¶¶ 12, 30. Accordingly, Movant's combined adjusted offense level was 31 for Counts 1 and 41, and when combined with his criminal history category of III, Movant's guideline range was 135 to 168 months. Id. at 20 ¶79.
Movant's sentencing hearing was initially held on April 16, 2010. ECF No. 1298. During the sentencing hearing, Movant objected to the firearm enhancement recommended in paragraph 47 of the PSR. The court continued the sentencing proceeding to June 7, 2010, so that counsel could file a formal objection. ECF No. 1541 at 6-7. Ultimately, the court overruled the objection because the court did not find that Movant's testimony was credible with respect to the firearm. ECF No. 1545 at 59-60. The court found the total offense level to be 31, with a recommended Sentencing Guidelines range of 135-168 months of imprisonment. Id. at 61. The court sentenced Movant to a term of imprisonment of 168 months on both counts, to run concurrently, followed by six years of supervised release. ECF No. 1381. Judgment was entered on June 10, 2010. Id.
On June 15, 2010, Movant filed a notice of appeal to the Court of Appeals for the Fourth Circuit contesting his two level gun enhancement at sentencing. ECF No. 1388. The Fourth Circuit held that Movant waived his right to appeal the sentencing enhancement and dismissed the appeal. United States of America v. Tyrone Blocker, No. 10-4655 (4th Cir. Jul. 13, 2011). Movant also filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3583(c)(2) that was denied by this court on February 28, 2012. ECF Nos. 1695 & 1705. Subsequently, on May 4, 2012, Movant filed thewithin motion to vacate asserting multiple instances of ineffective assistance of counsel as his grounds for relief. ECF No. 1728. On May 7, 2012, the court issued an order advising Respondent to file an answer or other pleading within thirty days. ECF No. 1729. On June 28, 2012, Respondent filed a response in opposition to the motion to vacate and a motion for summary judgment.1 ECF Nos. 1761-62. Also on June 28, 2012, the court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Movant of the consequences if he failed to adequately respond to Respondent's motion for summary judgment. ECF No. 1763. Movant filed a reply to Respondent on August 6, 2012. ECF No. 1780. Movant also filed a motion to amend2 his motion to vacate on September 30, 2013, as well as a supplementary brief on July 9, 2014. ECF Nos. 1833 & 1866. The court will consider all of Movant's supplementary briefs.
A federal prisoner in custody may challenge the fact or length of his detention by filing a motion pursuant to 28 U.S.C. § 2255. To receive reliefunder 28 U.S.C. § 2255, a movant is required to prove by a preponderance of the evidence that his sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). If this showing is made, the court must "vacate and set the judgment aside" and "discharge the prisoner or resentence him or grant a new trial to correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). If, on the other hand, "the motionand the files and records of the case conclusively show that the prisoner is entitled to no relief," the court may summarily deny the petition without holding a hearing. Rule 4(b), Rules Governing Section 2255 Proceedings; see also 28 U.S.C. § 2255(b) ().
Generally, when a movant attacks his sentence based upon errors that could have been but were not pursued on direct appeal, the movant must show cause and actual prejudice resulting from the errors of which he complains or he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack. See United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982); United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir. 1994)). However, "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the [movant] could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003).
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, Movant must show both that his attorney's performance fell below an objective standard of reasonableness and that he suffered actual prejudice. Id. at 687. This test applies not only to an attorney's performance at trial, but also to a claim that counsel was ineffective during the entry of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 59 (1985). To demonstrate deficient performance, Movant must show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment. Id. Competency is measured by what an objectively reasonable attorney would have done under the circumstancesexisting at the time of the representation. Id. at 687-88. To demonstrate actual prejudice, Movant must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. Even if counsel's performance is outside the wide range of professional assistance, an error by counsel will not warrant setting aside the conviction if the error had no effect on the...
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