United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia for United States;
Charles Jermaine King, Pro Se Defendant.
P. JONES UNITED STATES DISTRICT JUDGE
defendant, Charles Jermaine King, a federal inmate sentenced
by this court, has filed a Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255. The
United States has filed a Motion to Dismiss and the issues
have been fully briefed. After reviewing the record and
considering the arguments of the parties, I will grant the
United States' Motion to Dismiss and deny King's
§ 2255 motion.
September 24, 2008, King was indicted for conspiracy to
possess with intent to distribute fifty grams or more of a
mixture or substance containing a detectable amount of
cocaine base, in violation of 21 U.S.C. §§ 846,
841(a)(1) and 841(b)(1)(A). Attorney David Saliba was
appointed counsel and King proceeded to jury trial, where he
was found guilty.
Presentence Report (“PSR”) was created in
anticipation of sentencing. It recommended that King receive
an enhanced sentence because he qualified as a career
offender based on prior North Carolina drug convictions. PSR
¶¶ 370, 382, 384, ECF No. 137. Because of the
career offender designation, King's advisory guideline
range was 360 months to life incarceration. Id.
sentencing hearing was held on October 19, 2009. Defense
counsel argued that King's prior North Carolina drug
convictions should not be considered felonies and therefore
did not support his career offender designation. Sent.
Hr'g Tr. 7-8, ECF No. 221. King argued for a sentence of
between 37 and 51 months. Sent. Mem. 8, ECF No. 130. I denied
defense counsel's objections, and adopted the PSR. Sent.
Hr'g Tr. 33, ECF No. 221. However, I sentenced King below
the advisory guideline range to 180 months incarceration,
because he had a relatively minor role in the conspiracy and
his convictions used to support his career offender status
had occurred long ago. Id. at 39-40; J. 2, ECF No.
135. King appealed, but the Fourth Circuit affirmed his
conviction and sentence. United States v. King, 443
F. App'x 775 (4th Cir. 2011) (unpublished).
filed a § 2255 petition on August 20, 2012, arguing,
among other things, that defense counsel had provided
ineffective assistance by failing to file a petition for
rehearing en banc to the Fourth Circuit or a writ of
certiorari with the Supreme Court. I concluded that King had
established that his counsel had failed to continue to appeal
after King requested that he do so. Op. 46, ECF No. 232.
However, because King had no constitutional right to counsel
in pursuing certiorari review, I denied his § 2255
motion. Order ¶ 2, ECF No. 233. Nonetheless, because
King was denied an opportunity to petition for a writ of
certiorari, I noted that he “may choose to seek relief
in the court of appeals in the form of a petition to recall
the court's mandate and reenter its judgment in order to
allow him a delayed petition for certiorari.”
Id. at ¶ 1. King appealed the denial of the
§ 2255 motion, but the Fourth Circuit affirmed.
United States v. King, 585 F. App'x 170 (4th
Cir. 2014) (unpublished). King also filed a motion to recall
the mandate, which the Fourth Circuit granted. Order,
United States v. King, No. 09-5004 (4th Cir. Nov.
13, 2014), ECF No. 241. Attorney Paul Beer was appointed
counsel for the reinstated direct appeal. He filed on
King's behalf a petition for rehearing en banc, which was
denied, Order, United States v. King, No. 14-6838
(4th Cir. Jan. 20, 2015), ECF No. 246, and a writ of
certiorari with the Supreme Court, which was also denied,
King v. United States, 135 S.Ct. 2817 (2015).
filed his current § 2255 motion raising the following
claims: (1) Beers, as appellate counsel, was ineffective for
failing to argue to the Fourth Circuit in the petition for
rehearing en banc, that trial attorney David Saliba was
ineffective; (2) he was erroneously sentenced as a career
offender; and (3) he was erroneously sentenced because he is
entitled to a sentence reduction under 18 U.S.C. §
3582(c) and United States Sentencing Guidelines Manual
(“USSG”) Amendments 782 and 798.
state a viable claim for relief under § 2255, a
defendant must prove: (1) that his sentence was
“imposed in violation of the Constitution or laws of
the United States”; (2) that “the court was
without jurisdiction to impose such sentence”; or (3)
that “the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). King bears the
burden of proving grounds for a collateral attack by a
preponderance of the evidence. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958).
Ineffective Assistance of Counsel.
argues that Beers was ineffective for failing to argue that
trial counsel Saliba was ineffective in his representation of
King. Specifically, King argues that in the reinstated
appeal, Beers should have provided evidence that Saliba
failed to file a petition for rehearing or a writ of
certiorari and made “misrepresentations ...