United States District Court, W.D. Virginia, Abingdon Division
Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States.
Derrick Lamont Evans, Pro Se
JAMES P. JONES, District Judge.
The defendant, Derrick Lamont Evans, proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. This matter is before me upon the United States' Motion to Dismiss. Evans responded to the motion, making the matter ripe for disposition. After reviewing the record, I find that Evans' § 2255 claims are without merit and must be dismissed.
In May 2008, Evans was indicted for conspiring to distribute and possess with the intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1) ("Count One"), and for leasing, renting, using and maintaining a place for the purpose of distributing a controlled substance, in violation of 21 U.S.C. § 856(a)(1) ("Count Six"). The court appointed Evans counsel, and Evans accepted a written plea offer from the United States. The Plea Agreement stated, in pertinent part, that (1) Evans would plead guilty to Count One, which carried a statutory range of incarceration between twenty years and life imprisonment; (2) the United States would move to dismiss Count Six; (3) Evans agreed to stipulate that he had been convicted in North Carolina in 1993 for selling or delivering cocaine in 1992 ("First Conviction"); (4) the United States would not use Evans' felony convictions in North Carolina in 1995 for possession with intent to sell marijuana ("Second Conviction") and in 1997 for possession of cocaine ("Third Conviction") to enhance Evans' sentence if Evans accepted responsibility for his conduct and complied with the conditions of the Plea Agreement; (5) the United States would not seek an additional enhancement of Evans' penalty range, pursuant to 21 U.S.C. § 851, based on the Second and Third Convictions; (6) the parties stipulated that Evans was considered a "Career Offender" and an "Organizer/Leader of Organization, " pursuant to United States Sentencing Guidelines Manual ("U.S.S.G.") §§ 4B1.1 and 3B1.1(a) (2007), respectively; (7) both parties would seek a within-guidelines sentence; and (8) the United States would recommend that the court grant a three-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b). (Plea Agreement at 1-4, ECF No. 544.) Evans further agreed to waive his right to file an appeal or to collaterally attack any order entered in this case. ( Id. at 8.)
While testifying on behalf of the United States in three jury trials of Evans' co-conspirators in late 2008, Evans admitted his involvement in the conspiracy and acknowledged the terms of the Plea Agreement. ( See, e.g., ECF Nos. 1075 at 176-81; 1119 at 2-50; 1302 at 2-43.) Nonetheless, Evans later wrote a letter to the court dated April 12, 2009, denying his involvement in the conspiracy. (ECF No. 1775.) In response, the United States filed a "Notice to Defendant of his Failure to Comply with Terms of Plea Agreement" (ECF No. 1854), asserting that Evans had breached the terms of the Plea Agreement. The United States explained that, as a consequence of Evans' breach, it would refuse to recommend the three-point reduction for acceptance of responsibility and would seek a life sentence based on Evans' three prior felony drug convictions.
The court granted counsel's motion to withdraw and appointed new counsel, who promptly filed a motion to withdraw Evans' guilty plea (ECF No. 2021). Second counsel argued that the Second and Third Convictions did not qualify as predicate convictions to make Evans eligible for a life sentence and further argued that the United States' and first counsel's misrepresentations about the North Carolina convictions "coerced" Evans into signing the Plea Agreement. After a hearing on July 13, 2009, I denied Evan' motion to withdraw his guilty plea and determined that the Second and Third Convictions each constituted a "felony drug offense" for purposes of imposing a mandatory minimum life sentence, pursuant to 21 U.S.C. § 841(b)(1)(A). I explained that
Evans is simply trying to game the system by now seeking to withdraw his prior plea of guilty. He pleaded guilty because it was in his best interests to do so and not because of any lack of accurate advice as to the consequences. He was given a thorough Rule 11 examination before his plea was accepted, and his prior testimony and the other corroborating evidence a[m]ply supports his guilt.
United States v. Evans, 635 F.Supp.2d 455, 464-65 (W.D. Va. 2009).
New counsel also objected to the fifty kilograms of crack cocaine attributed to Evans in the Presentence Report. Relying on Harris v. United States, 536 U.S. 545, 549 (2002), I concluded that I could lawfully determine facts that increase the mandatory minimum sentence, and I further concluded that the United States had proved Evans' involvement in the conspiracy leading to the distribution of at least fifty grams of crack cocaine or at least five hundred grams of cocaine. Due to these findings, the statutorily mandated minimum sentence increased from twenty years' imprisonment to life imprisonment. (Op. & Order 3-4, Aug. 17, 2009, ECF No. 2137). On August 18, 2009, I sentenced Evans to life imprisonment.
Evans appealed to the United States Court of Appeals for the Fourth Circuit. In response to Evans' arguments, the court of appeals determined that Evans' guilty plea was knowing and voluntary and that Evans admitted the threshold drug amount of at least fifty grams of crack cocaine or at least five hundred grams of cocaine when he pleaded guilty. United States v. Evans, 462 F.Appx. 315, 317-18 (4th Cir 2012) (unpublished). Relying on United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), the court further held that the Second and Third Convictions did not constitute felony drug offenses. Evans, 462 F.Appx. at 318. Consequently, the court vacated the life sentence and remanded the case to me for resentencing. Id. I subsequently sentenced Evans to three hundred months' imprisonment. No appeal was taken.
Evans' timely filed pro se Motion to Vacate, Set Aside, or Correct Sentence followed. Evans presents nine claims of ineffective assistance of counsel, one claim that his guilty plea was not knowing and voluntary because he was not informed of the nature and consequences of the Plea Agreement, and one claim of prosecutorial misconduct because the United States allegedly prosecuted Evans differently than his co-conspirators. For the following ...