Nicks v. United States

• Docket Number: 5:23-cv-2-KDB,5:20-cr-97-KDB-DCK-1
• Decision Date: 05 July 2023
• Parties: ALEEF JAMAR NICKS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of North Carolina

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ALEEF JAMAR NICKS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 5:23-cv-2-KDB, 5:20-cr-97-KDB-DCK-1

United States District Court, W.D. North Carolina, Statesville Division

July 5, 2023

ORDER

Kenneth D. Bell United States District Judge

THIS MATTER is before the Court on Petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 [Doc. 1; see also Doc. 5 (Memorandum)]. Also pending are the Petitioner's “Motion to Expand the Scope of 2255 Proceedings Record” [Doc. 9] and “Renewed Motion to Grant Discovery” [Doc. 10].

I. BACKGROUND

On November 16, 2020 Petitioner was charged by Bill of Information in the case underlying the instant matter, Case No. 5:20-cr-97-KDB, with: possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count One); and possession of a firearm by a felon in violation of § 922(g)(1) (Count Two). [5:20-cr-97 (“CR”) Doc. 1 at 1]. Petitioner's retained counsel filed a Plea Agreement and Factual Basis in Case No. 97 on the same day that the Information was docketed. [CR Docs. 2, 3]. Petitioner waived indictment as follows:

On July 21, 2020, Petitioner was charged by Indictment in Case No 3:20-cr-239-FDW with possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). [3:20-cr-239, Doc 3].

I understand that I have been accused of one or more offenses punishable by imprisonment for more than one year. I was advised in open court of my rights and the nature of the proposed charges against me.

After receiving this advice, I waive my right to prosecution by indictment and consent to prosecution by information.

[CR Doc. 5].

Petitioner pleaded guilty to Counts One and Two in Case No. 97 pursuant to a written Plea Agreement in which he admitted he is, in fact, guilty as charged in those Counts. [CR Doc. 2 at ¶ 1]. The Plea Agreement provides that Petitioner's breach of the agreement would “permit the United States to proceed on any dismissed, pending, superseding or additional charges....” [Id. at ¶ 3]. The Plea Agreement sets forth Petitioner's minimum and maximum sentencing exposure. [ Id. at ¶ 4].

The parties agreed to jointly recommend that: the base offense level is 20 because the amount of cocaine known to or reasonably foreseeable by Petitioner is at least 300 grams but less than 400 grams pursuant to U.S. Sentencing Guidelines § 2D1.1(a)(5); two levels are added for possession of a firearm pursuant to § 2D1.1(b)(1); two levels are added for involving another in the offense pursuant to § 2D1.1(b)(16); three levels are added for an aggravating role pursuant to § 3B1.1(b); two levels are added for obstruction of justice pursuant to § 3C1.1(b); the plea is timely for purposes of acceptance of responsibility, if applicable; the parties will not seek any other enhancements or reductions to the offense level; and “[n]either party will seek a departure or variance from [the applicable guideline] range.” [Id. at ¶ 7]. The Plea Agreement further provides that: the Court would consider the advisory U.S. Sentencing Guidelines in determining the sentence; the Court had not yet determined the sentence; any estimate of the likely sentence is a prediction rather than a promise; the Court would have the final discretion to impose any sentence up to the statutory maximum for each count; the Court would not be bound by the parties' recommendations or agreements; and Petitioner would not be permitted to withdraw his plea as a result of the sentence imposed. [Id. at ¶ 6].

The Plea Agreement provides that there is a factual basis for the guilty plea, and that Petitioner read and understood the written Factual Basis filed with the Plea Agreement, which may be used by the Court, U.S. Probation Office, and United States without objection for any purpose, including to determine the applicable advisory guideline range or the appropriate sentence. [Id. at ¶ 10]. The Plea Agreement further provides that the Factual Basis does not necessarily represent all conduct relevant to sentencing, and that the Government may submit a Statement of Relevant Conduct to the Probation Office and present the Court with additional relevant facts for purposes of sentencing. [Id. at ¶ 11].

The Plea Agreement sets forth the rights Petitioner was waiving by pleading guilty, including the right: to withdraw the guilty plea once the magistrate judge has accepted it; to be tried by a jury; to be assisted by an attorney at trial; to confront and cross-examine witnesses; and not to be compelled to incriminate himself. [Id. at ¶¶ 12-14]. The Plea Agreement acknowledges that Petitioner had discussed with defense counsel his post-conviction and appellate rights, whether there are potential issues relevant to an appeal or post-conviction action, and the possible impact of any such issue on the desirability of entering into the Plea Agreement. [Id. at ¶ 15]. Petitioner expressly “waive[d] all rights to contest the conviction and sentence in any appeal or postconviction action” except for claims of ineffective assistance of counsel or prosecutorial misconduct. [Id. at ¶ 16]. The Plea Agreement provides that “[t]here are no agreements, representations, or understandings between the parties in this case, other than those explicitly set forth in this Plea Agreement, or as noticed to the Court during the plea colloquy and contained in writing in a separate document signed by all parties.” [Id. at ¶ 22].

The written Factual Basis that was filed along with the Plea Agreement provides in relevant part:

On or about April 30, 2020, in Lincoln County, . ALEEF JAMAR NICKS (“NICKS”), aided and abetted by others, knowingly and intentionally possessed cocaine, a Schedule II controlled substance, with the intent to distribute it.

On or about April 30, 2020, in Lincoln County, ... NICKS knowingly possessed a Ruger model P95 9mm semiautomatic pistol.

The Ruger model P95 9mm semiautomatic pistol was manufactured outside the State of North Carolina. Therefore, this firearm traveled in or affected interstate or foreign commerce before law enforcement seized it from NICKS on or about April 30, 2020.

Prior to April 30, 2020, NICKS knew that he had been convicted of one or more offenses punishable by a term of imprisonment in excess of one year, and was therefore prohibited from possessing a firearm at the time of the possession in this matter.

[CR Doc. 3 at 1-2] (paragraph numbers omitted; emphasis added).

On November 20, 2020, a Rule 11 hearing came before a United States Magistrate Judge. [CR Doc. 30]. Petitioner stated under oath that he understood the charges and the maximum and minimum penalties that could apply to him. [Id. at 1-2]. He further stated that he understood that an Information had been filed; that he “would have the right for [his] case to go before the grand jury first where they would make a determination of probable cause” and that “by proceeding today, [he is] waving [his] right to have the case go to a grand jury.” [Id. at 3]. The prosecutor read the charges and penalties into the record. [Id. at 4-5].

Petitioner admitted that he is, in fact, guilty of the counts set forth in the Information. [Id. at 7]. Petitioner agreed that he understood that pleading guilty may cause him to be deprived of certain civil rights, and that he discussed with counsel: how the sentencing guidelines may apply to his case; that the Court would not be able to determine the sentence until a PSR has been prepared and Petitioner has had an opportunity to comment on it; he may receive a sentence that is different from that called for by the guidelines; and he has no right to withdraw the plea even if he receives a sentence more severe than he expects. [Id. at 5-7, 10]. Petitioner acknowledged the rights he was waiving by pleading guilty, and stated his understanding that the case would proceed directly to sentencing. [Id. at 7].

Petitioner confirmed that he understood and agreed with the terms of the Plea Agreement, including the waiver of his appellate and post-conviction rights. [Id. at 10]. Petitioner stated that he read the Factual Basis, understood it, and agreed with it. [Id. at 11]. Petitioner stated that nobody threatened, intimidated, or forced him to plead guilty, and that nobody made any promises of leniency or a light sentence other than the terms of the Pea Agreement. [Id.]. Petitioner had enough time to discuss any possible defenses with his lawyer and was satisfied with counsel's services, stating that he has “[d]one a great job.” [Id. at 11-12].

On December 18, 2020, the Court granted the Government's Motion to Dismiss Case No. 239 because Petitioner had pleaded guilty in a “related case,” i.e., Case No. 97. [3:20-cr-239, Docs. 18, 19].

The Presentence Investigation Report (PSR) includes a Statement of Relevant Conduct that provides:

On April 30, 2020, a deputy with the Lincoln County Sheriff's Office traffic-stopped a car in Lincoln County North Carolina, for having its tail lights out. Sheena Newton (“NEWTON”) was driving. The defendant, Aleef Jamar Nicks (“NICKS”) was in the front passenger seat. At the time, NEWTON was NICKS's girlfriend, and she was pregnant. They were the car's only occupants.

When the deputy first approached the car, he saw a backpack on the back seat. Unbeknownst to the deputy at this time, the backpack contained: (i) 154.63 grams of cocaine; (ii) four stacks of cash, each separately rubber-banded and containing $1,000; (iii) a box of plastic baggies; (iv) a loaded Ruger model P95 9mm semiautomatic pistol; and (v) male clothing.

As the deputy spoke to NEWTON and NICKS, he smelled marijuana coming from inside the car. The deputy returned to his police cruiser to call for backup. While the deputy was in his police

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