Denton v. United States

• Decision Date: 19 June 2022
• Docket Number: 5:16-CR-60-3FL,5:21-CV-81-FL
• Parties: JAMES CURTIS DENTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of North Carolina

JAMES CURTIS DENTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

No. 5:16-CR-60-3FL

No. 5:21-CV-81-FL

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

June 19, 2022

ORDER AND MEMORANDUM & RECOMMENDATION

KIMBERLY A. SWANK, United States Magistrate Judge

This matter is before the court on Petitioner's motion to vacate pursuant to 28 U.S.C. § 2255. The Government has moved to dismiss for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6), and Petitioner has responded. This matter has been referred to the undersigned by United States District Judge Louise W. Flanagan for memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the Rules Governing Section 2255 Proceedings. Also before the court are Petitioner's motion for extension of time [DE #373], motion to appoint counsel [DE #384], motion to compel [DE #386], and motion for status update [DE #401]. For the reasons stated herein, it is recommended that the Government's motion to dismiss the § 2255 petition be granted and Petitioner's motion to vacate be

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dismissed. Petitioner's additional motions are dismissed as moot or denied, as explained below.^[1]

BACKGROUND

On August 2, 2016, Petitioner was charged in a second superseding indictment with conspiracy to possess with intent to distribute at least fifty grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846 (count five); possession of an unregistered explosive device, in violation of 26 U.S.C. §§ 5841, 5861(d), & 5871 (count seven); transportation of an explosive while being an unlawful user of a controlled substance, in violation of 18 U.S.C. §§ 842(i)(3) & 844(a)(1) (count eight); and transportation of an explosive with knowledge and intent to kill, injure, or intimidate, in violation of 18 U.S.C. § 844(d) (count nine). (Second Superseding Indictment (“Indictment”) [DE #95].)^[2] Petitioner was arraigned and pleaded not guilty to each count on June 13, 2017 [DE #215], and a jury trial began on October 23, 2017 [DE #242]. On October 25, 2017, the jury returned a verdict of guilty as to each count. (Jury Verdict [DE #252].)

On June 7, 2018, the court sentenced Petitioner to 360 months' imprisonment on count five and 120 months' imprisonment each on counts seven, eight, and nine, all to be served concurrently. (J. [DE #323].) The court also imposed a five-year term

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of supervised release on count five and three-year terms of supervised release on counts seven, eight, and nine, all to be served concurrently. (Id.) Petitioner appealed to the United States Court of Appeals for the Fourth Circuit, which affirmed in an opinion published on November 25, 2019. United States v. Denton, 944 F.3d 170 (4th Cir. 2019), cert. denied, 140 S.Ct. 2585 (2020).

Petitioner timely filed the instant motion to vacate pursuant to 28 U.S.C. § 2255 on February 16, 2021.^[3] (Mot. Vacate [DE #374].) The Government filed a motion to dismiss and supporting memorandum (Mot. Dismiss [DE #381]; Mem. Supp. Mot. Dismiss [DE #382]), to which Petitioner responded in opposition (Resp. Opp'n Mot. Dismiss [DE #388]).

DISCUSSION

There are four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence exceeds the statutory maximum sentence, and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; Hill v. United States, 368 U.S. 424, 426-27 (1962). Petitioner must establish his § 2255 claims by a preponderance of the evidence. See Loc Huu Bui v. United States, Nos. 5:10-CR-205-FL & 5:13-CV-258-FL, 2014 WL 582954, at *3 (E.D. N.C. Feb. 13, 2014)

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(citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) (per curiam)).

Petitioner identifies five grounds for relief based on ineffective assistance of counsel (IAC). Petitioner alleges trial counsel was ineffective for (1) failing to object to jury instructions regarding the drug conspiracy charge; (2) failing to move to suppress evidence obtained from the search of a cellular telephone seized from Petitioner; (3) failing to object to statements by co-conspirators at trial and failing to cross-examine these witnesses; (4) failing to object to evidence introduced at trial; and (5) general ineffectiveness at trial, deception by trial counsel Jackson^[4] regarding his ability to represent Petitioner in a federal jury trial, and incorrect advice from trial counsel Jackson regarding Petitioner's sentencing exposure. (Mot. Vacate at 4-14; Mem. Supp. Mot. Vacate [DE #374-1].)

I. Request for Appointment of Counsel

In connection with the instant § 2255 petition, Petitioner has requested the appointment of counsel. (Mot. Appoint Counsel [DE #384] at 2.) There is no constitutional right to counsel in collateral review proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Under 18 U.S.C. § 3006A(a)(2)(B), a court may appoint counsel in such proceedings if it determines that “the interests of justice so require.” Petitioner's motion presents no issues of great legal complexity. Therefore,

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the court denies Petitioner's motion for appointment of counsel. See Dunn v. United States, Nos. 5:11-CR-274-FL & 5:13-CV-773-FL, 2018 WL 6686650, at *1 (E.D. N.C. Sept. 18, 2014), mem. & recommendation adopted by 2014 WL 6694060 (E.D. N.C. Nov. 26, 2014).

II. Ineffective Assistance of Counsel Claims

To prevail on an IAC claim, Petitioner must show that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 678-88 (1984). The reasonableness of counsel's performance must be judged according to the specific facts of the case at the time of counsel's conduct. Id. at 690. There is a strong presumption that counsel's conduct was within the wide range of reasonable professional assistance, and the petitioner bears the burden of demonstrating that counsel's assistance was neither reasonable nor the product of sound strategy. Strickland, 466 U.S. at 689. While counsel's “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” id. at 691, a court reviewing an IAC claim will “not regard as tactical a decision by counsel if it made no sense or was unreasonable,” Vinson v. True, 436 F.3d 412, 419 (4th Cir. 2006) (citing Wiggins v. Smith, 539 U.S. 510, 52124 (2003)).

A petitioner also must show he was prejudiced by his attorney's deficient performance. Strickland, 466 U.S. at 692. This requires a petitioner to “show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “However, a

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[petitioner] is not required to establish that ‘counsel's deficient conduct more likely than not altered the outcome of the case,'” only that there is ‘“a probability sufficient to undermine confidence in the outcome' of the trial.” United States v. Rangel, 781 F.3d 736, 742 (4th Cir. 2015) (quoting Strickland, 466 U.S. at 693-94).

A. Collins Error in...