USA v. Addison et al

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:21-cv-426-FDW
3:17-cr-134-FDW-DSC-3
MONTRAYA ANTWAIN ATKINSON, )
)
Petitioner, )
)
vs. )
) ORDER
UNITED STATES OF AMERICA, )
)
Respondent. )
____________________________________)
THIS MATTER is before the Court on Petitioner’s pro se 28 U.S.C. § 2255 Motion to
Vacate Sentence, (Doc. No. 1).
I. BACKGROUND
Petitioner was charged in a 69 Count Bill of Indictment for his involvement in a United
Blood Nation (“UBN”) RICO conspiracy along with 82 co-defendants. The charge pertaining to
Petitioner is Count One, RICO conspiracy in violation of 18 U.S.C. § 1962(d); (3:17-cr-134
(“CR”) Doc. No. 3). Specifically, the Indictment alleges that: Petitioner and the other co-
Defendants were members and/or associates of UBN at all times relevant to the Indictment; UBN
is an “enterprise;” and “Beginning on a date unknown to the Grand Jury, but from at least in or
about 2009, and continuing to the present date, the Western District of North Carolina and
elsewhere, defendants … together with others both known and unknown to the Grand Jury, each
being a person employed by and associated with the United Bloods Nation, an enterprise engaged
in, and the activities of which affected, interstate and foreign commerce, did knowingly and
intentionally conspire to violate Title 18, United States Code, Section 1962(c), that is, to conduct
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and participate, directly and indirectly, in the conduct of the affairs of the United Bloods Nation
enterprise through a pattern of racketeering activity, as defined in Title 18 United States Code
Sections 1961(1) and (5), which pattern of racketeering activity consisted of:
i. multiple acts involving murder …; and
ii. multiple offenses indictable under 18 U.S.C. §§ 1028, 1343, 1344, and 1951; and
iii. multiple offenses involving narcotics trafficking….
(CR Doc. No. 3 at 24-25).
Further, the Indictment alleges that it was part of the conspiracy that each defendant agreed
that a conspirator would commit at least two acts of racketeering activity in the conduct of the
affairs of the enterprise. (Id.). As overt acts, the Indictment charges:
n. On or about April 17, 2011, (3) MONTRAYA ANTWAIN ATKINSON a/k/a
“Hardbody” and others known and unknown to the Grand Jury assaulted an
individual known to the Grand Jury….
mm. On or about May 8, 2013, (3) MONTRAYA ANTWAIN ATKINSON a/k/a
“Hardbody” and (21) PEDRO GUTIERREZ … conducted a gang meeting inside
the New York Department of Corrections….
mmmmmmmmmm. On or about October 15, 2016, (3) MONTRAYA ANTWAIN
ATKINSON … and (56) MYQUAN LAMAR NELSON … conducted a gang
meeting.
nnnnnnnnnn. On or about October 16, 2016, (3) MONTRAYA ANTAIN
ATKINSON .. and (21) PEDRO GUTIERREZ … conducted a gang meeting inside
New York Department of Corrections….
Eeeeeeeeeee. On or about October 27, 2016, (3) MONTRAYA ANTWAIN
ATKINSON … and (56) MYQUAN LAMAR NELSON … discussed gang
business.
(CR Doc. No. 3 at 28, 32, 61 63).
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On February 28, 2018, a hearing inquiring into the status of counsel1 and for the entry of a
guilty plea pursuant to Rule 11 came before a United States Magistrate Judge. See (CR Doc. Nos.
1128, 2308). At the hearing, Petitioner explained that he wished to see more of the State’s
evidence, accordingly, the matter was recessed. (CR Doc. No. 2308 at 20). When the hearing
reconvened, Petitioner indicated that he was satisfied with counsel and wanted to go forward with
his guilty plea. (Id. at 21). A Rule 11 hearing then commenced and Petitioner was sworn. (Id. at
22). Petitioner stated, under oath, that he received a copy of the Bill of Indictment and discussed
it with his lawyer. (Id. at 24). The charge and Petitioner’s sentencing exposure were summarized
in open court and Petitioner stated that he understood. (Id. at 25-27). Petitioner discussed with his
lawyer how the U.S. Sentencing Guidelines might apply to his case and understood that the Court
would not be able to determine his sentence until a Presentence Investigation Report (“PSR”) had
been completed, and that he may receive a sentence that is different from the guidelines, and that
he would still be bound by his guilty plea if he the sentence is more severe than he expects, or if
the Court does not accept the Government’s recommendation. (Id. at 28). Petitioner stated that he
understood the rights he was waiving by pleading guilty and his guilty plea’s consequences. (Id.
at 27, 29-30). He agreed that he understood that he had the right to plead not guilty and have a
trial. (Id. at 29). Petitioner stated, under oath, that he is guilty of Count One and wanted the Court
to accept his guilty plea. (Id. at 30). Petitioner further stated that he discussed the Factual Basis
with counsel, understood it, and agreed with it. (Id. at 31). Petitioner stated that nobody threatened,
intimidated, or forced him to plead guilty, or made any promises of leniency or a light sentence to
get him to plead guilty. (Id. at 31-32). Petitioner stated that he had enough time to discuss any
1 The inquiry into the status of counsel was triggered by a handwritten Letter addressed to the undersigned, filed on
February 23, 2018 expressing some discomfort with the CJA-appointed defense attorney, Joseph Luther Bell, Jr. (CR
Doc. No. 1098).
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possible defenses with counsel and that he was satisfied with counsel’s services. (Id. at 32).
The Factual Basis, which Petitioner and his attorney signed, provides in relevant part:
Several UBN Hoods, including the Nine Trey Gangster Hood, have a
presence in the Western District of North Carolina….
The UBN’s primary sources of income in the Western District of North
Carolina area derive from illegal activity, including but not limited to: narcotics
trafficking, wire fraud, robberies, and the sale and transfer of weapons. The UBN
enterprise requires that a portion of these illegally-obtained profits be transferred to
gang leaders through monthly dues or other monetary contributions….
The UBN enterprise in North Carolina and elsewhere, through its members
and associates, engages in racketeering activity as defined in Title 18, United States
Code, Sections 1959(b)(1) and 1961(1)…. It was part of the conspiracy that each
defendant agreed that a conspirator would commit at least two acts of racketeering
activity in the conduct of the affairs of the enterprise….
All of the defendants named in the Indictment are members or associates of
the UBN….
Montraya Antwain ATKINSON a/k/a “Hardbody” is a member of the Nine
Trey Gangsters Hood of the UBN. ATKINSON held the leadership rank of “High.”
ATKINSON is depicted on social media wearing UBN affiliated gang colors, using
UBN gang terminology, associating with other UBN members, and displaying
UBN gang hand signals.
ATKINSON participated in [five] UBN gang meetings [with co-Defendants
in Albemarle, North Carolina and New York]…
On April 7, 2011, ATKINSON and other members of the UBN attacked an
inmate at a prison.
ATKINSON participated in racketeering acts in furtherance of the UBN
enterprise including drug trafficking.
On July 1, 2016, ATKINSON possessed marijuana and cocaine with intent
to distribute. Pursuant to a traffic stop, officers searched ATKINSON’s
vehicle following their detection of the odor of marijuana emanating from
his vehicle. Law enforcement recovered 1.5 grams of cocaine, 4 grams of
marijuana, and $2,548 in U.S. currency from ATKINSON’s vehicle.
Over a two-year period in 2015 through 2017, ATKINSON purchased and
sold powder cocaine, a Schedule II controlled substance.
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At all times relevant to the Indictment, the defendant was a member of the
UBN enterprise, knowingly and intentionally agreed to conduct or participate in the
affairs of the UBN enterprise, and knowingly and intentionally agreed that he or
some other member of the conspiracy would commit at least two racketeering acts.
(CR Doc. No. 1122 at 2-4) (paragraph numbers omitted).
In addition to the foregoing, the PSR noted that “[t]he amount of cocaine, a Schedule II
controlled substance, that was known to or reasonably foreseeable by [him] (including relevant
conduct) was at least 5 kilograms but less than 15 kilograms.” (CR Doc. No. 188 at ¶ 49). The
PSR scored the base offense level as 30 because the underlying racketeering activity involved drug
trafficking, and the amount of cocaine known to or reasonably foreseeable by Petitioner was at
least five kilograms but less than 15 kilograms, pursuant to U.S. Sentencing Guidelines §§
2D1.1(a)(5) and 2E1.1(a)(2). (Id. at ¶ 56). Two levels were added because Petitioner directed the
use of violence pursuant to § 2D1.1(b)(2). (Id. at ¶ 57). Four levels were added because Petitioner
was an organizer or leader of a criminal activity involving five or more participants or was
otherwise extensive pursuant to § 3B1.1(a). (Id. at 59). Three levels were deducted for acceptance
of responsibility, resulting in a total offense level of 33. (Id. at ¶¶ 63-65). Petitioner had six
criminal history points, and two more points were added because Petitioner committed the instant
offense while under a criminal justice sentence, resulting in a total of eight criminal history points
and a criminal history category of IV. (Id. at ¶¶ 83-85). The resulting advisory guidelines range
was 188 to 235 months’ imprisonment followed by between one and three years of supervised
release. (Id. at ¶¶ 128, 131).
Defense counsel filed PSR objections addressing inter alia: the drug weight attributable to
him; the two-level offense level increase for “use of violence;” and the four-level offense level
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increase for Petitioner’s leadership role.2 (CR Doc. No. 1794).
A sentencing hearing came before the Court on September 26, 2018. Petitioner stated that
all of his answers to the Magistrate Judge’s questions at the Rule 11 hearing were true and correct
and that he would answer them the same way if he were asked again. (CR Doc. No. 2309 at 4-5).
He also agreed that he received the Acceptance of Plea, reviewed it for accuracy, and signed it.
(Id. at 5). Petitioner admitted that he is, in fact guilty of RICO conspiracy as he admitted at the
Rule 11 hearing. (Id. at 6). Petitioner further admitted that he received the PSR, read it and
understood it, and reviewed it with his lawyer. (Id. at 7-8). Defense counsel raised the objections
noted above, and additionally argued that Petitioner should not have received the two-point
increase in his criminal history category for being under a criminal justice sentence at the time of
the instant offense.3 (Id. at 8). The Government presented testimony from Michael Sardelis, a
Charlotte Mecklenburg Police Department officer, regarding Petitioner’s gang activities and the
drug amount attributable to him. See, e.g. (Id. at 14-21, 51-52). The parties then argued their
positions on the PSR objections. See (Id. at 66-75). The Court overruled Petitioner’s objections
and found that the PSR correctly calculated the level as 33, the criminal history category as IV,
and the advisory guideline imprisonment range as 188 to 235 months’ imprisonment. (Id. at 12-
13, 74-77). Defense counsel then argued for a downward variance from the advisory guideline
range. Counsel argued inter alia that Petitioner had a difficult childhood, is intelligent and hard-
working, made an effort to remove himself from gang life before his arrest, and that a variance
would be appropriate in light of some of the co-Defendants’ sentences. (Id. at 77-80). Petitioner
2 Other objections regarding factual matters such as Petitioner’s employment history, and the scoring of his criminal
history were incorporated into the final PSR. See (CR Doc. No. 1800 at pg. 37-39).
3 The Court allowed the objection although it was technically untimely. (CR Doc. No. 2309 at 11).
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addressed the Court; he apologized and expressed remorse. (Id. at 81). The Government argued
that Petitioner should be sentenced in the middle of the advisory guideline range. (Id. at 81-83).
The Court denied the defense motion for a variance and, after considering the appropriate factors,
sentenced Petitioner to 208 months’ imprisonment followed by three years of supervised release.
(Id. at 83-87). The Judgment was entered on October 18, 2018. (CR Doc. No. 2185).
On direct appeal, Petitioner argued that his sentence was procedurally unreasonable
because the Court erroneously: (1) calculated the drug weight attributable to him because the
Government failed to establish by the preponderance of the evidence that he should be held
responsible for at least five kilograms of cocaine; (2) increased his offense level by two levels
because by finding that he used violence, made credible threats to use violence, or directed the use
of violence in relation to a drug trafficking offense; and (3) increased his offense level by four
levels for being an organizer or a leader of the criminal activity to which he pleaded guilty. The
Fourth Circuit Court of Appeals affirmed on May 29, 2020, finding that “the Government
presented ample evidence allowing the district court to approximate that at least five kilograms of
cocaine was reasonably foreseeable to [Petitioner] during the course of his participation in the
conspiracy to which he pled guilty;” “the Government presented sufficient evidence from which
the district court could conclude that [Petitioner] directed violence as part of his participation in
the racketeering conspiracy…;” and “the district court did not clearly err when it enhanced
[Petitioner’s] offense level by three levels for being a leader or organizer of the RICO conspiracy”
in light of Petitioner’s “undisputed rank within the organization…, [Petitioner’s] admissions in the
statement of facts to which he agreed, and law enforcement’s testimony regarding [Petitioner’s]
role in the offense….” United States v. Atkinson, 815 F. App’x 704, 707-08 (4th Cir. 2020).
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Petitioner filed the instant § 2255 Motion to Vacate on August 11, 2021.4 (Doc. No. 1). He
argues that his plea was not knowing and voluntary as a result of ineffective assistance of counsel,
i.e., counsel failed to inform him that he had defenses to the RICO conspiracy charge, advised
Petitioner that his desire to go to trial “wasn’t a good idea because [he] wouldn’t have any chance
of acquittal,” and rushed Petitioner through the plea process. (Doc. No. 1-1 at 2-3, 9 n.5). Petitioner
argues that there is a reasonable probability that he would have proceeded to trial but for counsel’s
misadvice. (Id. at 2). He asks the Court to vacate his conviction and sentence, and return him to
the pre-plea state of the proceedings. (Id. at 2-3). The Government argues that the § 2255 Motion
to Vacate should be denied on the merits because Petitioner has failed to demonstrate any deficient
performance or prejudice. (Doc. No. 6). Petitioner has not filed a reply and the time to do so has
expired.
II. SECTION 2255 STANDARD OF REVIEW
A federal prisoner claiming that his “sentence was imposed in violation of the Constitution
or the laws of the United States, or that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the sentence to vacate, set aside or correct
the sentence.” 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to
promptly examine motions to vacate, along with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims
set forth therein. After examining the record in this matter, the Court finds that the arguments
4 Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prisoner mailbox rule); Rule 3(d), 28 U.S.C.A. foll. §
2255 (addressing inmate filings).
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presented by Petitioner can be resolved without an evidentiary hearing based on the record and
governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
III. DISCUSSION5
Petitioner argues that counsel: (1) failed to inform him that he had potential defenses to the
RICO conspiracy charge, i.e., that (i) he never visited Charlotte; (ii) he did not enter into an
agreement with anyone named in the indictment to commit a violent act nor did he instruct anyone
to commit such an act; (iii) he never bought or sold drugs from or to anyone named in the
indictment, and (iv) was not conspiring to commit the same offenses as his co-defendants; (2)
misadvised him that he had no chance of acquittal if he went to trial; and (3) rushed him through
the plea process. (Doc. No. 1-1 at 2-3, 12).
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions,
the accused has the right to the assistance of counsel for his defense. See U.S. Const. Amend. VI.
To show ineffective assistance of counsel, a petitioner must first establish deficient performance
by counsel and, second, that the deficient performance prejudiced her. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). The deficiency prong turns on whether “counsel’s
representation fell below an objective standard of reasonableness ... under prevailing professional
norms.” Id. at 688. A reviewing court “must apply a ‘strong presumption’ that counsel's
representation was within the ‘wide range’ of reasonable professional assistance.” Harrington v.
Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). The prejudice prong
inquires into whether counsel’s deficiency affected the judgment. See Strickland, 466 U.S. at 691.
A petitioner must demonstrate “a reasonable probability that, but for counsel’s unprofessional
5 Petitioner’s claims have been liberally construed, restated, and renumbered. Any argument or subclaim contained in
the lengthy Motion to Vacate and supporting Memorandum (Doc. No. 1-1), which is not specifically addressed in this
Order, has been considered and rejected.
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errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. A petitioner “bears
the burden of affirmatively proving prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir.
2008). If the petitioner fails to meet this burden, a reviewing court need not even consider the
performance prong. Strickland, 466 U.S. at 670.
The right to the assistance of counsel during criminal proceedings extends to the plea-
bargaining process. See Missouri v. Frye, 566 U.S. 134 (2012). Thus, criminal defendants are
“entitled to the effective assistance of competent counsel” during that process. Lafler v. Cooper,
566 U.S. 156, 162 (2012) (internal quotation marks omitted); Merzbacher v. Shearin, 706 F.3d
356, 363 (4th Cir. 2013). Where a defendant enters his plea upon the advice of counsel, the
voluntariness of the plea depends on whether counsel’s advice was “within the range of
competence demanded by attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56 (1985)
(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). To satisfy Strickland’s prejudice
prong, the defendant must show “there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59;
Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007). Put differently, a defendant “must convince
the court that a decision to reject the plea bargain would have been rational under the
circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
First, Petitioner argues that counsel failed to inform him of potential defenses. This claim
is refuted by the record insofar as the Petitioner stated, under oath at the Rule 11 hearing, that he
understood the RICO conspiracy charge, had discussed any possible defenses with counsel, was
satisfied with counsel’s services, and is guilty of the charged offense. (CR Doc. No. 2308 at 24,
27-30, 32). Petitioner’s present self-serving contentions to the contrary are rejected. Blackledge
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v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a strong presumption
of verity. The subsequent presentation of conclusory allegations unsupported by specifics is
subject to summary dismissal, as are contentions that in the face of the record are wholly
incredible.”); see, e.g., United States v. Lemaster, 403 F.3d 216, 221–22 (4th Cir. 2005) (§ 2255
petitioner’s sworn statements during the plea colloquy conclusively established that his plea
agreement and waiver were knowing and voluntary).
Moreover the “potential defenses” that the Petitioner has identified would not have
provided any meritorious defense to the charged RICO conspiracy. To convict the defendants of
RICO conspiracy, as charged in Count One, the Government was required to prove “the existence
of a RICO enterprise in which the defendant conspired to participate, and that the defendant
conspired that a member of the enterprise would perform at least two racketeering acts constituting
a pattern of racketeering activity.” United States v. Taylor, 942 F.3d 205, 213 (4th Cir. 2019)
(quoting United States v. Pinson, 860 F.3d 152, 161 (4th Cir. 2017); citing Salinas v. United States,
522 U.S. 52, 62 (1997)). And to establish a “pattern of racketeering activity,” the government was
required to prove, as the district court instructed the jury, that “the conspiracy involved or would
have involved the commission of [at least] two racketeering acts.” Id.; see 18 U.S.C. § 1961(1)(D)
(racketeering activity includes, but is not limited to, “any offense involving … the felonious
manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in a
controlled substance… punishable under any law of the United States”). Although a conspiracy
may exist even if a conspirator does not agree to commit or facilitate each and every part of a
racketeering act, each conspirator must share the “same criminal objective.” Salinas, 522 U.S. at
63-64.
Petitioner contends that he never actually visited Charlotte. Assuming arguendo that this
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is factually accurate, such would not have provided a defense to the RICO conspiracy charge. A
conspiracy may be prosecuted “in any district in which the agreement was formed or in which an
act in furtherance of the conspiracy was committed,” even if the defendant charged with conspiracy
never entered the district. United States v. Gilliam, 975 F.2d 1050, 1057 (4th Cir. 1992); see Hyde
v. United States, 225 U.S. 347, 356-57 (1912) (although none of the defendants had entered the
district as part of the conspiracy, venue was nevertheless appropriate based on the overt acts of a
co-conspirator there); United States v. Bowens, 224 F.3d 302, 311 n. 4 (4th Cir. 2000) (“In
determining venue for a particular offense, not only is the conduct of the defendant himself
considered, but the conduct of anyone with whom he shares liability ....”). Thus, whether a
particular defendant was ever physically present in the district may be irrelevant to the issue of
venue. See United States v. Al–Talib, 55 F.3d 923, 928 (4th Cir.1995). If the criminal conduct
spans multiple districts, the crime may be tried in any district in which at least one conduct element
was committed. United States v. Umana, 750 F.3d 320, 334 (4th Cir. 2014) (citing 18 U.S.C. §
3237(a); Rodriguez-Moreno, 526 U.S. at 281).
Had counsel raised the issue of venue, the prosecutor could have easily demonstrated that
venue lies in this district because “much of the criminal activity as well as acts of racketeering
occurred in Charlotte….” United States v. Gilmore, 2017 WL 9516566, at *3 (W.D.N.C. July 20,
2017), adopted by 2017 WL 3913028 (W.D.N.C. Sept. 7, 2017) (denying a venue challenge raised
by one of Petitioner’s co-Defendants); see United States v. Porter, 821 F.2d 968, 975 (4th Cir.
1987) (the government need only show that an act occurred in the district by a preponderance of
the evidence to establish venue). Thus, it was reasonable for counsel not to inform Petitioner that
venue was a potential defense.
Petitioner’s contentions that: he did not enter into an agreement with anyone named in the
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Indictment to commit a violent act, or instruct anyone to commit such an act; engage in a drug
transaction with anyone named in the Indictment; or conspire to commit the same offenses as his
co-Defendants are also unavailing. The Factual Basis, that Petitioner admitted under oath is true,
provides that: “[s]everal UBN Hoods, including Nine Trey Gangster Hood, have a presence in the
Western District of North Carolina;” “[t]he UBN enterprise in North Carolina and elsewhere,
through its members and associates, engages in racketeering activity as defined in Title 18, United
States Code, Sections 1959(b)(1) and 1961(1);” Petitioner had a “high” leadership rank in UBN;
UBN’s primary sources of income in the Western District of North Carolina area derive from
illegal activity, including but not limited to narcotics trafficking; Petitioner participated in
racketeering acts in furtherance of the UBN enterprise including drug trafficking; Petitioner
participated in UBN meetings with co-Defendants in New York and North Carolina; and “[a]t all
times relevant to the Indictment, the defendant was a member of the UBN enterprise, knowingly
and intentionally agreed to conduct or participate in the affairs of the UBN enterprise, and
knowingly and intentionally agreed that he or some other member of the conspiracy would commit
at least two racketeering acts.” (CR Doc. No. 1122 at 2-4). The foregoing established that
Petitioner engaged in RICO conspiracy by knowingly and intentionally agreed with others to
conduct or participate in the affairs of the enterprise; knowingly and willfully agreed that he or
some other member of the conspiracy would commit at least two racketeering acts; and that the
coconspirators shared the same criminal objective. It was not necessary for the Government to
prove that the racketeering acts were violent; that the Petitioner engaged in drug transactions with
UBN members; or that he conspired to commit the same crimes as his co-Defendants. His admitted
conduct satisfies the elements of a RICO conspiracy defense and none of the issues Petitioner has
described would have provided him with a meritorious defense. See, e.g., United States v. Mathis,
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932 F.3d 242 (4th Cir. 2019) (agreement to pursue the same criminal objective of the enterprise
was apparent from defendants’ roles as founders and leaders of the Double Nine Goon Syndikate
(“DNGS”) gang; they had a central role in directing the enterprise which required its members to
commit crimes for the gang’s welfare and support, and this strongly supported the jury’s
conclusion that they were actively involved in the RICO conspiracy conducted by DNGS); United
States v. Thomas, 490 F. App’x 514 (4th Cir. 2012) (testimony of numerous government witnesses
testified that Tree Top Piru (“TTP”), a subset of the Bloods gang, employed murder as one of the
group’s objectives, or as a means to accomplish an objective, was sufficient evidence for a
reasonable juror to find that TTP’s racketeering activities included conspiracy to commit murder);
United States v. Griffin, 660 F.2d 996 (4th Cir. 1981) (evidence was sufficient to show the existence
of an enterprise with a common purpose, where the defendants had a common objective of
associating themselves in an ongoing, informally organized enterprise to bribe and corrupt).
With regards to Petitioner’s allegation that counsel misadvised him that he had no chance
of achieving an acquittal if he went to trial, this too fails. Assuming arguendo that counsel so
advised Petitioner, this was not deficient performance. The Petitioner’s conduct as set forth in the
Factual Basis, PSR, and sentencing hearing testimony demonstrate that the Government had
extremely strong evidence of Petitioner’s guilt that would have made the possibility of acquittal
highly unlikely or impossible. It was not deficient for counsel to provide Petitioner a realistic
assessment of the strength of the Government’s case and the likelihood of his conviction at trial.
While Petitioner likely felt pressured by the reality of his situation, such was not of counsel’s
making and did not render the plea involuntary.
Finally, Petitioner contends that counsel rushed him to enter his plea. This claim is
conclusively refuted by the record. Petitioner expressed concerns about the representation at the
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Rule 11 hearing and the Magistrate Judge recessed the proceedings so that Petitioner and counsel
could confer. (CR Doc. No. 2308 at 19-20). When the case came back on the record, Petitioner
explained that his concerns had been addressed and that he was ready to enter his guilty plea. (Id.
at 21). He stated on the record, and under oath, that he had enough time to confer with counsel and
was satisfied with counsel’s services. (Id. at 32). He further stated that nobody threatened,
intimidated, or forced him to plead guilty, or made any promises of leniency or a light sentence to
get him to plead guilty. (Id. at 31-32). His present self-serving contentions to the contrary are
rejected. See Blackledge, 431 U.S. at 74; Lemaster, 403 F.3d at 221–22.
Moreover, Petitioner has failed to demonstrate prejudice. Although Petitioner conclusively
contends that there is a reasonable probability that he would have proceeded to trial but for
counsel’s allegedly deficient performance, the record demonstrates that it would not have been
objectively reasonable for him to do so. It was highly beneficial for Petitioner to plead guilty, as
he received a three-level reduction in the offense level for acceptance of responsibility, which
placed him in an advisory range of 188 to 235 months’ imprisonment. Without that reduction he
would have had an advisory range of 262 to 327 months’ imprisonment. See U.S.S.G. Sentencing
Table (2016). Further, there was strong evidence of his guilt as outlined in the Factual Basis, PSR,
and sentencing hearing testimony. He has failed to demonstrate that it would have been objectively
reasonable for him go to trial in light of that strong evidence. See United States v. Santiago, 632
F. App’x 769, 774 (4th Cir. 2015) (“when the Government’s case is strong,” a § 2255 petitioner
“faces a nearly insurmountable obstacle to showing that it would have been rational to go to trial.”);
United States v. Fugit, 703 F.3d 248, 259 (4th Cir. 2012) (finding that the decision to go to trial
would not have been objectively reasonable where the evidence of petitioner’s guilt was
overwhelming). Accordingly, Petitioner has failed to demonstrate that he was prejudiced by
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counsel’s allegedly deficient performance.
For all the foregoing reasons, Petitioner’s § 2255 Motion to Vacate is dismissed with
prejudice and denied.
IV. CONCLUSION
For the foregoing reasons, the § 2255 Motion to Vacate is dismissed with prejudice and
denied.
IT IS, THEREFORE, ORDERED that:
1. Petitioner’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255, (Doc. No. 1), is DISMISSED with prejudice and DENIED.
2. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of
appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338
(2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when relief is
denied on procedural grounds, a petitioner must establish both that the dispositive
procedural ruling is debatable and that the petition states a debatable claim of the
denial of a constitutional right).
3. The Clerk is instructed to close this case.
Signed: December 14, 2021
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