Mann v. United States, No. 5:08-CR-296-D

CourtUnited States District Courts. 4th Circuit. Eastern District of North Carolina
Writing for the CourtJAMES C. DEVER
Decision Date24 September 2013
PartiesJOHNNY D. MANN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Docket NumberNo. 5:12-CV-470-D,No. 5:08-CR-296-D

JOHNNY D. MANN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

No. 5:08-CR-296-D
No. 5:12-CV-470-D

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

SO ORDERED: September 24, 2013


ORDER

On July 27, 2012, Johnny D. Mann ("Mann") moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [D.E. 56]. On September 17, 2012, Mann filed a motion that the clerk docketed as a motion to dismiss the indictment on jurisdictional grounds [D.E. 59]. On April 3,2013, the government moved to dismiss Mann's section 2255 motion [D.E. 64-65]. On April 4, 2013, pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam), the court notified Mann about the motion to dismiss, the consequences of failing to respond, and the response deadline [D.E. 66]. On April 16, 2013, Mann responded [D.E. 68]. As explained below, the court grants the government's motion to dismiss.

On October 1, 2008, a federal grand jury in the Eastern District of North Carolina indicted Mann and charged him with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924 [D.E. 11]. On January 12, 2009, pursuant to a plea agreement [D.E. 22], Mann pleaded guilty to the charge [D.E. 21]. See [D.E. 72] 23-24.

On August 4, 2009, the court held a sentencing hearing and calculated Mann's advisory guideline range to be 180 to 210 months' imprisonment. See [D.E. 71] 10. The court granted the

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government's motion under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), [D.E. 71] 11-12, and sentenced Mann to 144 months' imprisonment. [D.E. 71] 23-24; see [D.E. 37-38]. The judgment was entered on the docket on August 17, 2009 [D.E. 38]. Mann did not appeal, and his conviction became final on August 31, 2009. See Fed. R. App. P. 4(b)(1)(A); Clay v. United States, 537 U.S. 522, 527-28, 532 (2003). On August 3, 2010, and October 22, 2010, the government moved to reduce Mann's sentence under Rule 35(b) [D.E. 40, 42]. On January 14, 2011, the court granted the government's motions and reduced Mann's sentence from 144 months to 119 months [D.E. 43].

A motion 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 whether the complaint is legally and factually sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-63, 570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 132 S. Ct. 1327 (2012); Giarratano v. 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 drawn from the facts. 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; Tellabs. Inc. v. Makor Issues & Rights. 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 to vacate, the court is not limited to the motion itself. The court also 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).

Mann's section 2255 motion is untimely under 28 U.S.C. § 2255(f)(1). See United States

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v. Mathur, 685 F.3d 396, 397-98 (4th Cir. 2012). Likewise, the motion is untimely under 28 U.S.C. § 2255(f)(3). See United States v. Powell, 691 F.3d 554, 556-60 (4th Cir. 2012). Furthermore, the motion is untimely under 28 U.S.C. § 2255(f)(4). See United States v. MacDonald, 641 F.3d 596, 610 n.7 (4th Cir. 2011); Lo v. Endicott, 506 F.3d 572, 575-76 (7th Cir. 2007); E.J.R.E. v. United States, 453 F.3d 1094, 1097-98 (8th Cir. 2006); see also Walker v. Martin, 131 S. Ct. 1120, 1129 (2011); Johnson v. United States, 544 U.S. 295, 308-09 (2005); Shannon v. Newland, 410 F.3d 1083, 1087-89 (9th Cir. 2005).

Nothing in the record suggests that equitable tolling should apply. Cf. Holland v. Florida, 130 S. Ct. 2549, 2562-64 (2010); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990); Rouse v. Lee, 339 F.3d 238, 246-47 (4th Cir. 2003) (en banc); Chao v. Va. Dep't of Transp., 291 F.3d 276, 283 (4th Cir. 2002). Mann does not assert that he has pursued his claims diligently, but rather that "he would have" done so. [D.E. 57] 5. Mann argues that he was unable to timely file his section 2255 motion because of medical problems including a hip replacement surgery. See [D.E. 56-1] 4. However, the medical records Mann attached in his response to the motion to dismiss show that Mann received approval for bilateral hip replacement in October 2010 and had hip surgeries in March and November 2011. See [D.E. 68-1] 2, 16-19, 42-43, 94. Thus, Mann's surgeries did not impact his ability to file a section 2255 motion by August 31, 2010, within one year after his conviction became final. Similarly, Mann's lack of access to materials or documents while in transit after May 2011 did not impact his ability to file his section 2255 motion by the one-year deadline. See United States v. Anderson, 238 F.3d415, 2000 WL 1781614, at*1 (4th Cir. 2000) (per curiam) (unpublished table decision). To the extent Mann argues that prescription pain medication interfered with his ability to diligently pursue his claims, [D.E. 68] 2-3, Mann fails to plausibly allege any causal connection between the medication and his failure to timely file his section 2255 motion. See

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Robison v. Hinkle, 610 F. Supp. 2d 533, 538-40, 542-43 (E.D. Va. 2009); see also United States v. Sosa, 364 F.3d 507, 512-13 (4th Cir. 2004). Accordingly, the court dismisses Mann's untimely section 2255 motion.

Alternatively, Mann's claims fail on their merits. In his section 2255 motion, Mann asserts that (1) he received ineffective assistance of counsel when his trial attorney failed to file a notice of appeal at Mann's request, [D.E. 56] 4, (2) he received ineffective assistance when counsel failed to prepare him for his arraignment and plea negotiations, [D.E. 56-1] 2-4, and (3) the court improperly sentenced him under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"). [D.E. 56] 5.

As for Mann's claims of ineffective assistance of counsel, "[t]he 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) (internal quotation marks omitted); see Strickland v. Washington, 466 U.S. 668, 687-91 (1984). The Sixth Amendment right to counsel extends to all critical stages of a criminal proceeding. See, e.g., Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012); Lafler v. Cooper, 132 S. Ct. 1376,1385 (2012); Smith v. Murray, 477 U.S. 527, 535-36 (1986).

An individual alleging ineffective assistance of counsel must demonstrate that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance caused the individual prejudice. See Strickland, 466 U.S. at 687; see also Frye, 132 S. Ct. at 1409-10; Lafler, 132 S. Ct. at 1384-85; Hill v. Lockhart, 474 U.S. 52, 57-58 (1985); Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc). When deterrmning...

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