Prysock v. US
| Decision Date | 19 April 2011 |
| Docket Number | Cr. No. 1:06-676 |
| Parties | Joseph Prysock, Movant, v. United States of America, Respondent. |
| Court | U.S. District Court — District of South Carolina |
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Movant Joseph Prysock was indicted for conspiracy to possess with intent to distribute, and to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) (Count 1); using and carrying a firearm during and in relation to, and in furtherance of, a drug trafficking crime, in violation of18 U.S.C. §§ 924(c)(1)(A) (Count 2); possession with intent to distribute a quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C) (Counts 3, 5); possession with intent to distribute and distribution of a quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C) (Count 4); and possession with intent to distribute and distribution of a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C) (Count 6).
Movant entered into a plea agreement as to Counts 1 and 6 of the indictment on October 31, 2006. Movant's guilty plea was entered on October 31, 2006. A sentencing hearing was held on November 8, 2007 at which Movant, through trial counsel, withdrew a number of his objections to the presentence investigation report (PSR). The court sustained Movant's objections regarding a number of drug transactions and reduced the drug weight attributed to Movant from 2,643.34 grams of cocaine base to 991.34 grams of cocaine base. These changes reduced Movant's base offenselevel under the United States Sentencing Guidelines from a level 38 to a level 34. Movant received a two-level increase for possessing a dangerous weapon and a two-level reduction for acceptance of responsibility, yielding a total offense level of 34. Movant's criminal history computation included four points based on previous convictions, as well as a two-level increase for being on state probation at the time the instant offense was committed. Movant's criminal history category is III, for a Guidelines range of 188 to 235 months incarceration. Movant was sentenced to 188 months incarceration. Judgment was entered November 15, 2007. Movant filed a notice of appeal on November 20, 2007. The appeal was dismissed pursuant to Fed. R. App. P. 42(b) on December 17, 2007.
This matter now is before the court on Movant's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (ECF No. 85), which motion was filed July 30, 2008. Movant asserts the following grounds for relief:
See generally ECF 85, 4-11 (errors in original).
The government filed a response in opposition to Movant's § 2255 motion on November 17, 2008. By order filed November 17, 2008, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Movant was advised of the summary judgment procedures and the possible consequences if he failed to respond adequately. Movant filed a response to the government's opposition on December 2, 2008. In addition, on October 8, 2010, Movant filed a motion to amend his § 2255 motion. Movant seeks the benefit of revisions to 21 U.S.C. § 841 that were enacted August 3, 2010 (ECF No. 109). See Fair Sentencing Act of 2010, Pub. L. No. 111-220 ().
The government first asserts that Grounds One and Two are procedurally defaulted. The court agrees. Because Movant withdrew at sentencing the objections related to Grounds One and Two, and because Movant failed to raise these claims on direct appeal, 1 he is legally barred from raising them now, pursuant to the doctrine of procedural default. See United States v. Sa'ad El-Amin, 373 F. Supp. 2d 574, 577-78 (E.D. Va. 2005) (); United States v. Kiser, 322 F. App'x 293 (4th Cir. 2009) ()).
As to Ground One, a review of the PSR reveals that Movant raised his claims that a criminal domestic violence conviction should not be counted in his criminal history calculation, and that he was not on probation at the time of the instance offense, in his objections to paragraphs 48, 49, and 56 of the PSR. Movant withdrew the objections at sentencing. Sentencing Hearing 13-15 (ECF No. 73). As to Ground Two, Movant objected to the inclusion of 700 grams of cocaine base attributed to Movant by Ricky Jones, as set forth in paragraph 26 of the PSR. Movant withdrew the objection at sentencing. Sentencing Hearing 8-9. The court queried Movant regarding the objections and obtained his consent to withdraw these objections. Movant did not subsequently pursue a direct appeal of these issues. The court concludes that Grounds One and Two are procedurally defaulted.
The government asserts that Ground Three is procedurally defaulted. The court agrees. At the change of plea hearing, the government summarized its evidence, which included eyewitness testimony that Movant fired a gun during a drug transaction in Aiken, South Carolina, on August 8, 2001. Change of Plea Hearing 4 (ECF No. 52); see also Investigative Officer's Report, Statements (ECF No. 85-2). Movant agreed with the government's summary of the evidence. Change of Plea Hearing 4.
The Aiken drug transaction was referenced in paragraphs 16-20 of the PSR. In his objections to the PSR, Movant denied any drug or weapon activity related to the incident. However, Movant withdrew the objections at the sentencing hearing. Sentencing Hearing 6-7. Movant did not subsequently pursue a direct appeal of this issue. The court concludes that Ground Three isprocedurally defaulted.
Movant contends he received ineffective assistance of counsel. To prove ineffective assistance of counsel, Movant must show that trial counsel's performance was deficient. See Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney's performance is deficient when it is not reasonable under prevailing professional norms. Id. at 688. Movant also must demonstrate that he was prejudiced by trial counsel's alleged deficient performance, in that because of trial counsel's unprofessional errors, the result of the proceeding would have been different. See id. at 694. Strickland requires Movant to "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690. The court then must "determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. Even if counsel's performance is outside the wide range of professional assistance, an error by counsel will not warrant setting aside the conviction if the error had no effect on the judgment. Id. at 694.
In Hill v. Lockhart, 474 U.S. 52 (1985), the United States Supreme Court discussed the application of the rule regarding deficient performance in cases where the defendant does not go to trial, but instead enters a guilty plea:
In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure toadvise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at...
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