Garner v. United States
| Decision Date | 15 August 2022 |
| Docket Number | 7:16-CR-116-D-19,7:20-CV-158-D |
| Parties | DONALD RAY GARNER, Defendant and Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of North Carolina |
On July 22, 2020, Donald Ray Gamer (“Gamer” or “defendant”) moved pro se for compassionate release under the First Step Act (“First Step Act”), Pub. L. No. 115-391, § 603(b), 132 Stat. 5194,5238-41 (2018) () and for appointment of counsel [D.E. 1519]. On November 11, 2021, Gamer, through counsel, filed a memorandum in support of his motion for compassionate release [D.E 1607]. On December 13, 2021, the government responded in opposition to Gamer's motion for compassionate release [D.E. 1609]. On August 27,2020, Gamer moved pro se under 28 U.S.C. § 2255 to vacate, set aside, or correct his 120-month sentence [D.E. 1531] and filed a memorandum in support [D.E. 1532]. On November 16, 2021, the government moved to dismiss Gamer's 2255 motion [D.E. 1604] and filed a memorandum in support [D.E. 1605]. That same day the court informed Gamer about the motion to dismiss and the consequences of failing to respond [D.E. 1606], See Roseboro v. Garrison, 528 F.2d309,310 (4th Cir. 1975) (per curiam). As explained below, the court grants the government's motion to dismiss, dismisses Gamer's section 2255 motion, and denies Gamer's motion for compassionate release and request for home confinement.
Gamer was a long-time drug dealer and a member of the McKoy drug trafficking organization in Sampson County, North Carolina. On August 21, 2017, without a written plea agreement, Gamer pleaded guilty to conspiracy to distribute and possess with intent to distribute a quantity of cocaine and a quantity of cocaine base (crack) in violation of 21 U.S.C. § 846. See [D.E. 670]. The Presentence Investigation Report (“PSR”) calculated the drug weight Gamer was accountable for as “a marijuana equivalency of 812.8 kilograms.” PSR [D.E. 1231] ¶¶ 13, 64. Gamer's counsel objected to the drug weight attributed to Gamer and to Gamer not receiving a mitigating role reduction. See PSR Add. [D.E. 1231]; [D.E. 827]. On October 15,2018, the court held Gamer's sentencing hearing. See [D.E 1239]. At the hearing Gamer's counsel withdrew his objection to the Gamer not receiving a minor role enhancement and argued his objection to the drug weight attributed to Gamer. See Sen. Tr. [D.E. 1296] 4-11. After overruling the drug weight objection, the court found Gamer's total offense level to be 25, his criminal category to be V, and his advisory guideline range to belOO to 125 months' imprisonment. See id. at 12. After thoroughly considering the arguments of counsel, Gamer's statement, and all relevant factors under 18 U.S.C. § 3553(a), the court sentenced Gamer to 120 months' imprisonment. See id. at 12-25; [D.E. 1257]. Gamer appealed. See [D.E. 1262]. On August 6,2019, the United States Court of Appeals for the Fourth Circuit affirmed Gamer's sentence. See United States v. Gamer, 774 Fed.Appx. 159,160-161 (4th Cir. 2019) (per curiam) (unpublished).
Aa for the government's motion to dismiss Gamer's 2255 motion, amotion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for “failure to state a claim upon which relief can be granted” tests a complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Afi. Corp, v. Twombly, 550 U.S. 544,555-63, 570 (2007); Coleman v. Md, Court of Appeals, 626 F.3d 187,190 (4th Cir. 2010), affd, 566 U.S. 30 (2012); Giarratanov. Johnson. 521 F.3d 298,302 (4th Cir. 2008); accord Erickson v. Pardus, 551 U.S. 89,93-94 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a complaint's legal conclusions. See, e.g., Iqbal, 556 U.S. at 678. Similarly, a court “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 677-79. Moreover, a court may take judicial notice of public records without converting a motion to dismiss into a motion for summary judgment. See, e.g., Fed.R.Evid. 201(d); Tellabs, Inc, v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007); Philips V. Pitt Cnty. Mem'l Hosp., 572 F.3d 176,180 (4th Cir. 2009). In reviewing a section 2255 motion, the court is not limited to the motion itself. The court may consider “the files and records of the case.” 28 U;S.C. § 2255(b); see United States v. McGill, 11 F.3d 223,225 (1st Cir. 1993). Likewise, a court may rely on its own familiarity with the case. See, e.g.. Blackledge v. Allison. 431 U.S. 63,74 n.4 (1977); United States v. Dyess, 730 F.3d 354,359-60 (4th Cir. 2013).
In Gamer's section2255 motion, Gamer argues that his trial counsel was ineffective because: (1) his lawyer allegedly failed to investigate and present his serious mental illness (i.e., bipolar ... disorder) as a mitigating factor at sentencing; (2) his lawyer withdrew an objection to the lack of a minor role reduction at sentencing, allegedly without consulting with Gamer and without his .' r consent; (3) his lawyer allegedly did not contest the drug weight attributed to Gamer; and (4) his lawyer did not object “when the court in sentencing relied solely on [section] 3553(a) factors and did not give an individualized assessment as to defendant's non-frivolous mitigating arguments for a lower sentence.” [p.E. 1532] 4-6, 8; see [D.E. 1532].
Although Gamer styles his objections as ineffective assistance of counsel claims, Gamer challenges the court's consideration and exercise of its discretion in weighing the arguments and relevant factors at sentencing. Gamer, however, already challenged the court's sentence on appeal and the Fourth Circuit affirmed Gamer's sentence as substantively reasonable. See Gamer, 774 Fed.Appx. at 160-61. Gamer cannot relitigate his claims that failed on direct appeal by repackaging them as ineffective assistance of counsel claims. Cf. Harrington v. Richter, 562 U.S. 86,105 (2011) (quotation omitted) (Because “[a]n ineffective-assistance claim can function as away to escape rules of waiver and forfeiture and raise issues not presented at trial,... the Strickland standard must be applied with scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very adversary process the right to counsel is meant to serve.”); see Weaver v. Massachusetts, 137 S.Ct.1899,1912 (2017); Jackson v. Kelly, 650 F.3d 477,493 (4th Cir. 2011). Thus, the claims feil.
Alternatively, Gamer has not plausibly alleged ineffective assistance of counsel because he has not plausibly alleged deficient performance or prejudice. The “Sixth Amendment entitles criminal defendants to the effective assistance of counsel-that is, representation that does not fall below an objective standard of reasonableness in light of prevailing professional norms.” Bobby v. Van Hook, 558 U.S. 4,7 (2009) (per curiam) (quotations omitted). The Sixth Amendment right to counsel extends to all critical stages of a criminal proceeding. See, e.g., Lee v. United States, 137 S. tt. 1958,1964-65 (2017); Laflerv. Cooper, 566U.S. 156,164-65 (2012);Missouriv. Frye, 566 U.S. 134,140 (2012); Glover v. United States, 531 U.S. 198,203-04 (2001). “[S]entencing is a critical stage of trial at which a defendant is entitled to effective assistance of counsel, and a sentence imposed without effective assistance must be vacated and reimposed to permit facts in mitigation of punishment to be fully and fieely developed.” United States v. Breckenridge, 93 F.3d 132,135 (4th Cir. 1996). To state a claim of ineffective assistance of counsel in violation of the Sixth Amendment, Gamer must show that his attorney's performance fell below an objective standard of reasonableness and that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668,687-91 (1984).
When determining whether counsel's representation was objectively unreasonable, a court must be “highly deferential” to counsel's performance and must attempt to “eliminate the distorting effects of hindsight.” Id. at 689. Therefore, the “court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. A party also must show that counsel's deficient performance prejudiced the party. See id. at 691-96. A party does so by showing that there is a “reasonable probability” that, but for the deficiency, “the result of the proceeding would have been different.” Id. at 694.
As for Gamer's claim about his mental health condition, Gamer's lawyer raised Gamer's depression and bipolar disorder at sentencing. See Sent. Tr. at 14. Gamer has not alleged what other information about his bipolar disorder defense counsel could have presented at sentencing. Defense counsel's performance at sentencing was adequate and falls within the wide range of professional f performance. See Strickland, 466 U.S, at 691. On this record, there was no deficient performance. See Id. ‘
Gamer also has not alleged prejudice from his counsel's alleged lack of investigation and arguments about his bipolar disorder at sentencing. To prove prejudice from deficient performance at sentencing, a defendant must prove a reasonable probability that the defendant would have been sentenced differently if the error had not occurred. See Sears v. Upton, 561 U.S. 945, 955-56 (2010); United States v. Carthome, 878 F.3d458,469-70 (4th Cir. 2017). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. At 694. The PSR recounted Gamer's history of bipolar disorder, and counsel raised it at sentencing. See PSR ¶ 51; Sent....
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