Cobb v. United States
| Decision Date | 10 February 2017 |
| Docket Number | No. 5:13-CV-00719-F,No. 5:10-CR-00040-F-1,5:10-CR-00040-F-1,5:13-CV-00719-F |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | CHRISTOPHER STEPHONE COBB, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
Before the court are the following motions:
The issues have been fully briefed, and the matters are now ripe for ruling. For the reasons addressed below, Cobb's Motion to Vacate is DENIED, the Government's Motion for Summary Judgment is ALLOWED, Cobb's first Motion to Amend is ALLOWED, Cobb's second Motion to Amend is DENIED in part and DISMISSED in part, Cobb's third Motion to Amend is DENIED, Cobb's Motion to Appoint Counsel is DENIED, and Cobb's Motion for DNA Testing is DENIED.
On February 4, 2010, Cobb was charged in a three-count indictment. See Indictment [DE-1]. Then, on August 18, 2010, Cobb was charged in a six-count superseding indictment. See Superseding Indictment [DE-33]. In Counts One and Six, Cobb was charged with possession of a firearm and/or ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). See id. Counts Two and Four charged Cobb with possession with intent to distribute a quantity of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1). See id. In Count Three, Cobb was charged with possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c). See id. Count Five charged Cobb with possession of a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1). See id.
At his arraignment, held on November 8, 2010, Cobb pled not guilty to each count of the Superseding Indictment. Following a two-day jury trial, Cobb was found not guilty of Count Five but guilty as to the remaining counts. See Verdict [DE-60].
Cobb's sentencing was held on March 2, 2011, and he was sentenced to a total of 500 months' imprisonment. See Judgment [DE-64]. Cobb was sentenced to 120 months' imprisonment as to each of Counts One and Six, to run concurrently. See id. Cobb was sentenced to 180 months' imprisonment as to each of Counts Two and Four, to run concurrently with each other but consecutive to Counts One and Six. See id. Cobb was sentenced to 200 months' imprisonment in Count Three, to run consecutive to all other counts. See id.
On March 8, 2011, Cobb filed a Notice of Appeal [DE-67].1 In an unpublished per curiam opinion, the Fourth Circuit Court of Appeals affirmed this court's judgment. See Unpublished Opinion [DE-80]. Cobb sought rehearing en banc, but the request was denied. Cobb then filed a petition for writ of certiorari. On October 9, 2012, the Supreme Court denied Cobb's petition.
Cobb filed the instant pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [DE-86] on October 11, 2013. In his § 2255 motion, Cobb raises the following issues: (1) his attorney provided ineffective assistance by failing to investigate the facts surrounding his arrest, including the seizure of the black leather jacket, which should have led to the filing of a motion to suppress; (2) his attorney provided ineffective assistance by sharing privileged information with the Assistant United States Attorney ("AUSA"); (3) he is actually innocent based on the lack of a nexus between him and the black leather jacket; and (4) this court's sentence violated Alleyne v. United States, 133 S. Ct. 2151 (2013). On November 25, 2013, the Government filed its Motion for Summary Judgment [DE-90].
Cobb filed the instant motion pursuant to 28 U.S.C. § 2255, which provides:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). With a § 2255 motion, the petitioner bears the burden of proving the grounds for collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). When deciding a § 2255 motion, the court need not hold a hearing when "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). When conducting the § 2255(b) review, pro se filings are held to a less stringent standard. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).
Summary judgment is appropriate where there is no genuine issue of material fact and it appears that the moving party is entitled to judgment as a matter of law. United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991) (). Any permissible inferences which are drawn from the underlying facts must be viewed in a light most favorable to the nonmoving party. Matsushita Elec. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Summary judgment is appropriate when the record taken as a whole could not lead a trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
Cobb has raised two claims of ineffective assistance of counsel. See Mot. Vacate [DE-86]. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The petitioner bears the burden of proof as to both prongs of the Strickland standard. United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010). Under the first prong, the petitioner must show that his counsel's representation "fell below an objective standard of reasonableness" as measured by "prevailing professional norms." Strickland, 466 U.S. at 688. There is "a strong presumption that counsel's conduct falls withinthe wide range of reasonable professional assistance." Id. at 689. As for the second prong, the petitioner must demonstrate that his counsel's inadequate performance was prejudicial to him. Id. at 687. Specifically, the petitioner must show "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. The court will apply the Strickland standard to both of Cobb's ineffective assistance of counsel claims.
In his first claim, Cobb alleges that his attorney provided ineffective assistance by failing to investigate the facts surrounding his arrest and the seizure of the black leather jacket, which should have led to the filing of a motion to suppress. Mot. Vacate [DE-86] at 4; Mot. Vacate Mem. [DE-86-1] at 11-22. Next, Cobb argues that his attorney should have requested DNA analysis to determine if he had actually worn the black leather jacket. Mot. Vacate Mem. [DE-86-1] at 19. Cobb next argues that his attorney should have gotten Jerome McCoy to testify as a defense witness. Id. at 20-21. Cobb contends that if his attorney had investigated his allegations against the arresting officers, there is a reasonable probability that this court would have suppressed the evidence found in the black leather jacket. Id. at 17-18. Cobb concludes that if his attorney had requested a suppression hearing, there is a reasonable probability that this case would have been dismissed. Id. at 16.
Based on the trial testimony from Officers Ford and Taylor, Cobb was wearing a black leather jacket prior to his arrest. See Nov. 15, 2010 Tr. [DE-77] at 40:14-15, 66:17. Followingapprehension, the officers noticed that Cobb was no longer wearing the jacket. Id. at 46:19-21, 82:7-12. Officer Ford located the black leather jacket near where he had tackled Cobb. Id. at 46:22-23. Officer Taylor found a loaded firearm and crack cocaine in the jacket. Id. at 71:9-73:13. Given this evidence from Officers Ford and Taylor, the two officers involved in Cobb's arrest, the court concludes that Cobb has failed to raise a genuine issue of material fact on the issue of whether his attorney provided deficient performance by failing to file a motion to suppress. Moreover, even if Cobb's attorney had filed a motion to suppress, the evidence linking Cobb to the black leather jacket and its contents was so strong that Cobb has failed to raise a genuine issue of material fact on the issue of prejudice. Cobb's claim that his attorney provided ineffective assistance by failing to request DNA analysis of the black leather jacket and its contents must also fail based on the strength of the testimony from Officers Ford and Taylor, which tied Cobb directly to the black leather jacket.
The Government is also entitled to summary judgment on Cobb's claim that his attorney should have gotten McCoy to testify as a defense witness. Officer Brinkley, an officer with the Raleigh Police Department, testified at Cobb's trial regarding covert surveillance conducted on ...
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