Durham v. United States

• Decision Date: 07 April 2022
• Docket Number: 5:16-CR-192-1FL,5:20-CV-509-FL
• Parties: DONTAI DURHAM, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of North Carolina

DONTAI DURHAM, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 5:16-CR-192-1FL, 5:20-CV-509-FL

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

April 7, 2022

MEMORANDUM & RECOMMENDATION

KIMBERLY A. SWANK United States Magistrate Judge

This matter is before the court for consideration of Petitioner's 28 U.S.C. § 2255 motion to vacate [DE ##40, 43]. The Government has moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted [DE #49]. This matter has been referred to the undersigned for memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the Rules Governing Section 2255 Proceedings. For the reasons explained below, the undersigned recommends that the Government's motion to dismiss be granted.

BACKGROUND

On July 15, 2016, Petitioner was charged via criminal complaint with the distribution and possession with intent to distribute cocaine and cocaine base on seven occasions, in violation of 21 U.S.C. § 841(a)(1), and with conspiracy to distribute and possess with the intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846. (Complaint [DE #1].) On August 18, 2016, Petitioner was indicted on six counts of drug violations: three counts charging distribution and possession with the intent to distribute a quantity of cocaine base (counts one, three, and six); one count charging distribution and possession with the intent to distribute a quantity of cocaine base and marijuana (count two); and two counts charging distribution and possession with the intent to distribute twenty-eight grams or more of cocaine base (counts four and five). (Indictment [DE #16].)

On November 16, 2016, Petitioner pleaded guilty, pursuant to a written plea agreement, to counts one and five of the indictment. Under the plea agreement, Petitioner agreed

[t]o waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal the conviction and whatever sentence is imposed on any ground, . . . and further to waive all rights to contest the conviction or sentence in any post-conviction proceedings, including one pursuant to 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea....

(Plea Agt. [DE #24] at 1-2.) During the hearing pursuant to Fed. R Crim. 11, the Government proffered a factual basis for the guilty plea; Petitioner's counsel made no response to the proffer; and Petitioner stated that he did not dispute any of the information proffered by the Government. (Audio of Nov 16, 2016, Arraignment Hr'g at 2:41 through 2:45.) Before sentencing, Petitioner objected only to Paragraph 60 of the Presentence Report. (Presentence Report (PSR) [DE #31].)

On April 6, 2017, Petitioner was sentenced to concurrent sentences of 135 months' imprisonment on each count and three years of supervised release on count one and four years of supervised release on count five, to run concurrently. (J. [DE #36].)

Petitioner did not appeal his conviction or sentence, and the judgment therefore became final on April 21, 2017.

On July 27, 2020, Petitioner filed a letter that the court construed as a motion to vacate, and in response to which the court issued a Castro notice in August 2020. (Letter [DE #40]; Order denying Motion to Appoint Counsel and Castro Notice [DE #39].) After an order from the court advising Petitioner that his initial motion to vacate, vis a vis his July 2020 letter, did not conform to the form for the Rules Governing § 2255 Proceedings, Petitioner filed the instant motion to vacate on October 26, 2020, using the proper form. (Mot. Vacate [DE #43].) The Government filed a motion to dismiss and supporting memorandum on January 19, 2021. (Mot. Dismiss [DE #49]; Mem. Supp. Mot. Dismiss [DE #50].) On January 20, 2021, the court sent Petitioner a letter notifying him of the Government's motion to dismiss and that he had until February 9, 2021, to file a response in opposition to the motion. (Rule 5 Letter [DE #51].) Petitioner has not responded to the Government's motion to dismiss.

DISCUSSION

Under § 2255, there are four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (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).

In his filings, Petitioner states that Chad Coffey, a former Granville County Deputy Sheriff who “was assigned to [Petitioner's] case, ” violated the Constitution and is under investigation for misusing confidential informants and monetary funds. (Mot. Vacate at 4; see also Letter (stating that Coffey has been recently indicted for obstruction of justice and “illegally coercing a confidential informant”).) Petitioner further states that his wife was contacted^[1] by Granville County District Attorney Michael Waters and notified that Petitioner's “case is one of the cases in [Officer Coffey's] corrupt and unlawful practice.” (Mot Vacate at 5.) Petitioner notes that he could see audiovisual evidence relating to Coffey's improper use of confidential informants in the discovery material for Petitioner's case and that the Granville County Sheriff's Department and Granville County Drug Unit “were under investigation during [Petitioner's] case and plea.” (Id.) In his letter to the court, Petitioner also notes the Granville County Sheriff's Department “for years (prior even to [Petitioner's] case) has displayed [a] wide range of corruption.” (Letter.) Petitioner asks the court to “vacate or set aside” his sentence. (Mot. Vacate at 13.)

Under the Antiterrorism and Effective Death Penalty Act of 1996, § 2255 claims are subject to a one-year statute of limitations, which runs from the latest of the following:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f)(1)-(4).

The limitation period set forth in § 2255 may be tolled only “where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). For equitable tolling to apply, Petitioner must demonstrate that (1) he has been pursuing his rights diligently, and (2) extraordinary circumstances stood in his way and prevented him from timely filing. Holland v. Florida, 560 U.S. 631, 648 (2010); United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). “The diligence required for equitable tolling purposes is ‘reasonable diligence,' not ‘maximum feasible diligence.'” Holland, 560 U.S. at 653 (citations omitted) (first quoting Lonchar v. Thomas, 517 U.S. 314, 326 (1996); then quoting Starns v. Andrews, 524 F.3d 612, 618 (5th Cir. 2008)).

“[A] guilty plea ‘renders irrelevant-and thereby prevents the defendant from appealing-the constitutionality of case-related government conduct that takes place before the plea is entered' and also ‘relinquishes any claim that would contradict the admissions necessarily made upon entry of a voluntary plea of guilty.'” Ciampa v. United States, Nos. 5:14-CR-197-1FL & 5:16-CV-850-FL, 2018 WL 6584479, at *5 (E.D. N.C. Dec. 14, 2018) (quoting Class v. United States, 138 S.Ct. 798, 805 (2018)), appeal dismissed by 773 Fed.Appx. 143 (4th Cir. 2019). A § 2255 petitioner's “sworn representations as to his guilt to the charged offense made at a plea hearing ‘carry a strong presumption of verity' and ‘constitute a formidable barrier against any subsequent collateral proceedings.'” Richardson v. United States, Nos. 4:11-CR-110-FL & 4:13-CV-130-FL, 2015 WL 4366198, at *3 (E.D. N.C. July 16, 2015) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). A guilty plea is not involuntary or otherwise invalid “merely because the prosecution fail[s] to disclose material impeachment information to the accused prior to his plea of guilty.” Walker v. Johnson, 446 F.Supp.3d 88, 100 (W.D. Va. 2020) (citing United States v. Ruiz, 536 U.S. 622, 629 (2002)); see also Ruiz, 536 U.S. at 633 (“[T]he Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.”).

Petitioner did not file his motion to vacate within one year of any of the circumstances set forth in § 2255(f)(1)-(4). Petitioner was sentenced on April 6, 2017, and judgment was entered the next day. (J.) Petitioner did not appeal, and his judgment became final on April 21, 2017, upon expiration of the fourteen-day period for appealing the judgment. See Clay v. United States, 537 U.S. 522, 532 (2003) (finality attaches when the time for seeking direct review expires). Petitioner had, at the latest, until April 23 2018, to file a timely § 2255 motion. Petitioner's motion- construing Petitioner's initial letter to the court as said motion-was...