Order — Anthony Jackson v. United States of America (Eastern District of North Carolina, Document 57)

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An Order filed November 21, 2023 as Document 57 in Anthony Jackson v. United States, Nos. 7:22-CR-00039-BO and 7:23-CV-01233-BO, in the United States District Court for the Eastern District of North Carolina, Southern Division. The Court grants the respondent's motion to dismiss and dismisses petitioner Jackson's § 2255 motion to vacate, set aside, or correct sentence. Jackson claimed that counsel was ineffective in negotiating a plea agreement that waived appeal rights while advising that he could still appeal. The Court concludes that he waived his rights to appeal or collaterally attack his sentence or conviction, and finds that his allegations contradict his sworn statements at the plea colloquy. It also denies a certificate of appealability.

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“Order — Anthony Jackson v. United States of America (Eastern District of North Carolina, Document 57).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-7-22-cr-00039-dkt-57-e-d-n-c-8aa1eaaa1a/, SHA-256 cde9c51e7a6998d36fc7cca1a66b37cd3b27a54a4a083b9c2c0e82141b1cd419.

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IN THE UNITED STA TES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:22-CR-00039-BO
No. 7:23-CV-01233-BO

ANTHONY JACKSON )
Petitioner, )
V. ) ORDER
)
UNITED STATES OF AMERICA )
Respondent. )

This matter comes before the Court on petitioner' s motion to vacate, set aside, or correct

sentence his sentence in accordance with 28 U.S.C § 2255 , [DE 48], and respondent's motion to

dismiss, [DE 53]. The motion to dismiss has been fully briefed. The matter is ripe for ruling. For

the following reasons, the Court grants respondent's motion to dismiss and dismisses petitioner' s

§ 2255 motion.

BACKGROUND

On 6 July 2022, petitioner Anthony Jackson pleaded guilty, pursuant to a written plea

agreement, to distributing methamphetamine in violation of 21 U.S.C. § 841(a)(l). [DE 22, 23].

In his plea agreement, petitioner agreed to waive his rights to appeal under 18 U.S.C. § 3742 and

to contest his conviction or sentence in any post-conviction proceeding under § 2255 , with a

limited exception for claims of ineffective assistance of counsel or prosecutorial misconduct not

known at the time of defendant' s guilty pleas. [DE 23]. On 20 October 2022 , the Court sentenced

petitioner to 84 months imprisonment, 3 years of supervise release, and a $100 special assessment.

[DE 33, 34].

Case 7:22-cr-00039-BO Document 57 Filed 11/21/23 Page 1 of 6
Soon after his sentencing, petitioner appealed, raising arguments that the Court erred

during sentencing. The Fourth Circuit concluded that petitioner knowingly and voluntarily waived

his right to an appeal and granted the United States ' motion to dismiss. [DE 45].

In August 2023, petitioner filed the instant motion to vacate, amend, or correct his sentence

under 28 U.S.C. § 2255. [DE 48]. Petitioner claims that defense counsel was ineffective because

counsel negotiated a plea agreement that waived petitioner' s rights to appeal while simultaneously

advising petitioner that the agreement would not prevent him from appealing his conviction or

sentence. [DE 48, 49]. Respondent moved to dismiss the § 2255 petition under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The motion

has been fully briefed and is ripe for decision.

DISCUSSION

Section 2255 permits those who have been convicted of federal crimes to move the

sentencing court to vacate, set aside or correct their sentence on the grounds that the sentence "was

imposed in violation of the Constitution or laws of the United States, or that 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." 28 U.S.C. § 2255 ; See, e.g. , In re McNeil, 68

F .4th 195, 200 (4th Cir. 2023).

The United States may respond to a§ 2255 petition with a Rule 12(b)(6) motion to dismiss.

See Rule 12 of the Rules Governing Section 2255 Proceedings ("The Federal Rules of Civil

Procedure .. . may be applied to a proceeding under these rules."). To survive a motion to dismiss,

a petition must contain "sufficient factual matter, accepted as true, to ' state a claim for relief that

is plausible on its face .' " Ashcroft v. Iqbal, 55 U.S. 662 , 678 (2009) (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544,570 (2007)). A claim for relief that is plausible has factual content that

Case 7:22-cr-00039-BO Document 57 Filed 11/21/23 Page 2 of 6
"allows the court to draw the reasonable inference" that the petitioner is entitled to the relief

requested." Id. What is more, "vague and conclusory allegations contained in a § 2255 petition

may be disposed of without further investigation by the District Court." United States v. Dyess,

730 F.3d 354, 359 (quotation marks and citation omitted).

Jackson argues that the Court should grant his § 2255 motion, or at the very least hold an

evidentiary hearing, because his trial counsel ' s assistance was constitutionally ineffective. "To

succeed on a claim of ineffective assistance of counsel , a movant must show that (1) counsel ' s

performance was constitutionally deficient, and (2) such deficient performance prejudiced [the

movant's] defense ." United States v. Taylor , 54 F.4th 795 , 803 (4th Cir. 2023). Jackson contends

that his trial counsel was constitutionally deficient when he negotiated a plea that waived Jackson ' s

rights to appeal issues relating to his sentencing while advising Jackson that he would still be able

to raise those issue on appeal if he signed the plea agreement.

These allegations, liberally construed, implicate the voluntariness of his plea agreement.

See Hill v. Lockhart, 474 U.S. 52, 56 ("Where, as here, a defendant is represented by counsel

during the plea process and 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 of attorneys

in criminal cases. ' " (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). The United

States responds that the Court need not reach the merits because his plea agreement waived his

right to collaterally attack his conviction or sentence.

"[A] criminal defendant may waive his right to attack his conviction and sentence

collaterally, so long as the waiver is knowing and voluntary." United States v. LeMaster, 404 F.3d

216, 220 (4th Cir. 2005); United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013) (same). A

§ 2255 motion premised on allegations that contradict statements made at the Rule 11 colloquy-

Case 7:22-cr-00039-BO Document 57 Filed 11/21/23 Page 3 of 6
i.e., sworn statements that "carry a strong presumption of verity, United States v. White, 366 F.3d

291 , 295 (4th Cir. 2004) (quoting Blackledge v. Allison, 431 U.S 63, 74 (1977))-should be

dismissed without an evidentiary hearing because such allegations are palpably incredible and

patently frivolous or false. Lemaster, 403 F.3d at 222. It is only in the most "extraordinary

circumstance" that allegations that contradict a petitioner' s sworn statements cannot be considered

palpably incredible or patently frivolous or false . White , 300 F.3d. at 297-300 (finding an

"extraordinary circumstance" where the government conceded that ineffective assistance of

counsel rendered guilty pleas involuntary warranting an evidentiary hearing to determine if

prosecutors orally promised that the defendant could enter a conditional plea).

Turning to petitioner' s claim, the Court concludes that petitioner waived his rights to

appeal or collaterally attack his sentence or conviction under§ 2255. The § 2255 petition, liberally

construed, contains only one set of allegations that implicate whether petitioner' s plea agreement

was voluntarily entered. See LeMaster, 403 F.3d at 222. Petitioner' s allegations of defense

counsel's ineffectiveness contradict declarations he made in open court: Petitioner affirmed during

his Rule 11 colloquy that he was pleased with counsel 's performance, [3:18-20, DE 43]; that he

read the plea agreement which expressly stated that it would waive his rights to appeal and contest

the conviction in any post-conviction proceeding, [4:17-19, DE 43]; and that he was entering into

the agreement voluntarily, [4:20-21, DE 43].

The Rule 11 colloquy, moreover, eliminates the possibility that petitioner misunderstood

the extent of the waiver. The Court made clear to petitioner not only that the "plea agreement says

you' re going to plead guilty and waive your right to appeal ," but also that his plea would "waive[]

[his] right to contest the conviction in any post-conviction proceeding." [4:25-5:3, DE 43].

Petitioner affirmed that he agreed to those terms. Similar colloquies have been used to dismiss

Case 7:22-cr-00039-BO Document 57 Filed 11/21/23 Page 4 of 6
analogous § 2255 petitions. See Lemaster, 403 F.3d at 422; See also White , 366 F.3d at 299

(remarking that the Rule 11 colloquy failed to "eliminate the possibility of a layman making [the]

assumption" that his rights to appeal some issues survived his plea agreement).

Furthermore, insofar as petitioner attempts to challenge the scope of the waiver through an

ineffective assistance theory, he has not explained why counsel ' s ineffectiveness was unknown to

him at the time he signed the plea agreement or engaged in the Rule 11 colloquy. Petitioner' s

factual allegations necessarily involve conduct that occurred prior to and during the signing of the

plea agreement. According to petitioner, defense counsel ' s alleged ineffectiveness occurred in

negotiating the agreement and advising him that it would allow him to retain his rights to an appeal.

Yet the plea agreement immediately contradicts these allegations. Petitioner affirmed in open court

that he read the plea agreement, an agreement that blatantly contradicts defense counsel ' s alleged

statements, yet he went ahead and signed it anyways. He then doubled down and pleaded guilty

despite being told during the Rule 11 colloquy that doing so would waive his rights to appeal or

collaterally attack his sentence or conviction. Again, petitioner has not put forward any reason why

his affirmations during the Rule 11 colloquy should be considered false or otherwise ignored.

In brief, petitioner' s testimony during his Rule 11 colloquy, including his affirmation of

the written plea agreement, evinces that the contrary allegations raised in his § 2255 motion are

palpably incredibly and patently frivolous or false . No "extraordinary circumstance" prevent the

Court from relying on these statements. No evidentiary hearing is necessary to resolve petitioner' s

§ 2255 motion. Accordingly, the Court grants the respondent' s motion to dismiss and dismisses

the § 2255 motion.

Case 7:22-cr-00039-BO Document 57 Filed 11/21/23 Page 5 of 6
' .

CERTIFICATE OF APPEALABILITY

When the Court enters a final order adverse to a petitioner, Rule 11 (a) of the Rules

Governing Proceedings under 28 U.S.C. § 2255 requires the Court to issue or deny a certificate of

appealability. A certificate of appealability shall not issue without "a substantial showing of the

denial of a constitutional right." 28 U.S .C. § 2253(c)(2). This standard requires the applicant to

"demonstrate that reasonable jurists would find the district court' s assessment of the constitutional

claims debatable or wrong," United States v. Swaby, 855 F.3d 233 , 239 (4th Cir. 2017) (quoting

Slack v. McDaniel, 529 U.S. 4 73, 484 (2000)), or if the district court' s denial rests on procedural

grounds, the applicant must also show that reasonable jurists would find the district court' s

procedural ruling similarly debatable. United States v. McRae, 793 F.3d 392, 397 (2015). Because

no reasonable jurists would the Court's denial of petitioner's § 2255 petition debatable, the Court

denies a certificate of appealability.

CONCLUSION

For these reasons, the United States ' motion to dismiss, [DE 53] is GRANTED and

petitioner' s§ 2255 motion to vacate, set aside, or correct sentence [DE 48] is DISMISSED.

SO ORDERED, this )J_ day of November 2023.

UNITED STA TES DISTRICT JUDGE

Case 7:22-cr-00039-BO Document 57 Filed 11/21/23 Page 6 of 6

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