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United States v. King

United States District Court, W.D. Virginia, Abingdon Division

September 26, 2017

UNITED STATES OF AMERICA
v.
CHARLES JERMAINE KING, Defendant.

          Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia for United States;

          Charles Jermaine King, Pro Se Defendant.

          OPINION

          JAMES P. JONES UNITED STATES DISTRICT JUDGE

         The 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.

         I.

         On 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.

         A 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. ¶ 407.

         A 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 United States v. King, 443 F. App'x 775 (4th Cir. 2011) (unpublished).

         King 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).

         King 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.

         II.

         To 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).

         A. Ineffective Assistance of Counsel.

         King 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 ...


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