Spikes v. United States

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:21-cv-128-FDW

(3:17-cr-134-FDW-DSC-71)

DENZEL LAMONT SPIKES, )

)

Petitioner, )

)

vs. ) ORDER

)

UNITED STATES OF AMERICA, )

)

Respondent. )

__________________________________________)

THIS MATTER is before the Court on Petitioner’s pro se Motion to Vacate, Set Aside or

Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1).

I. BACKGROUND

Petitioner was charged in an 82-Defendant conspiracy involving the United Bloods Nation

(“UBN”) gang. The charges pertaining to Petitioner are: Count (1), RICO conspiracy as part of

UBN,1 an enterprise engaged in racketeering through its members and associates including

multiple acts involving murder, robbery, and narcotics trafficking, and as part of the conspiracy

each defendant agreed that a conspirator would commit at least two acts of racketeering activity in

the conduct of the affairs of the enterprise, and Petitioner committed overt acts including: OA-14,

1 The Second Superseding Indictment charges that the purpose of the UBN enterprise includes:

a. Preserving and protecting the power, territory, reputation, respect, and profits of the enterprise through the

use of intimidation, violence, threats of violence, assaults and murder;

b. Promoting and enhancing the enterprise and its members’ and associates’ activities, including but not

limited to, murders, robberies, narcotics distribution, and other criminal activities;

c. Keeping the community and rivals in fear of the enterprise and its members and associates through violence

and threats of violence;

d. providing financial support and information to gang members, including leaders who are incarcerated;

e. Providing assistance to other gang members who committed crimes for and on behalf of the gang; and

f. Hindering, obstructing, and preventing law enforcement officers from identifying, apprehending, and

successfully prosecuting and punishing members of the enterprise.

(CR Doc. No. 2374 at 11).

assault on or about March 31, 2012; OA-19, assault and a shooting on or about May 8, 2012; and

OA-72, attempted robbery, murder of M.B. and shooting of T.C. on or about July 26, 2016 (18

U.S.C. § 1962(d)); Count (12), murder in aid of racketeering (18 U.S.C. §§ 1959(a)(1) and 2);

Count (13), attempted Hobbs Act robbery on or about July 26, 2016 (18 U.S.C. §§ 1951 and 2);

Count (14), using or carrying a firearm during and in relation to a crime of violence and possession

of a firearm in furtherance of a crime of violence resulting in a death on or about July 26, 2016 (18

U.S.C. §§ 924(c) and 924(j) and 2); Count (15), attempted murder in aid of racketeering activity

on or about July 26, 2016 (18 U.S.C. §§ 1959(a)(5) and 2); and Count (16), using or carrying a

firearm in relation to a crime of violence and possession of a firearm in furtherance of a crime of

violence on or about July 26, 2016 (18 U.S.C. §§ 924(c) and 2). (3:17-cr-134 (“CR”) Doc. No.

2374) (Second Superseding Indictment).

Petitioner pleaded guilty to the RICO conspiracy charged in Count (1) in exchange for the

Government’s dismissal of the remaining counts. (CR Doc. No. 2396 at 1). The Plea Agreement

contains a binding sentencing recommendation of 420 months’ imprisonment. (CR Doc. No. 2396

at 2). The Plea Agreement provides that Petitioner stipulated to the existence of a factual basis to

support his guilty plea, that he read and understood the written Factual Basis that was filed with

the Plea Agreement, and that the Court may use the offense conduct set out in the Presentence

Report (“PSR”) without objection by Petitioner for any purpose. (CR Doc. No. 2396 at 4). The

Plea Agreement sets forth the rights Petitioner was waiving by pleading guilty, and specifically

provides that Petitioner was waiving the rights to contest his conviction and/or sentence in post-

conviction motions and on appeal except for claims of ineffective assistance of counsel or

prosecutorial misconduct. (CR Doc. No. 2396 at 5).

The Factual Basis provides in relevant part:

The UBN, including its leadership, members and associates, in the Western

District of North Carolina, and elsewhere, constitutes an “enterprise,” as defined by

Title 18, United States Code, Section 1961(4) and 1959(b)(2)….

The purposes of the UBN enterprise include preserving and protecting the

power, territory, reputation, respect and profits of the enterprise through the use of

intimidation, violence, threats of violence, assaults, and murder; promoting and

enhancing the enterprise and its members’ and associates’ activities, including, but

not limited to, robberies, murders, and other criminal activities; keeping rivals,

victims, potential victims, and community members in fear of the enterprise and its

members and associates through violence and threats of violence; providing

financial support and information to other gang members, including those

incarcerated in the United States; providing assistance to other gang members who

committed crimes for and on behalf of the gang; and to hinder, obstruct, and prevent

law enforcement officers from identifying, apprehending, and successfully

prosecuting and punishing offenders.

All of the defendants named in the Indictment are members or associates of

the UBN.

… SPIKES … is a member of the Nine Trey Gangsters Hood of the UBN

and holds the rank of Five-Star General….

… On May 8, 2012, SPIKES and … DURANT were a part of a nine-person

group who beat, tazed, and shot a victim on the victim’s porch. Both the victim

and another witness identified SPIKES as one of the assailants. SPIKES was

convicted of Assault with a Deadly Weapon Inflicting Serious Injury with respect

to this incident.

SPIKES agreed that he or some other member of the conspiracy would

commit two or more racketeering acts, and personally committed two or more

racketeering acts, including acts involving robbery and murder.

On July 26, 2016, SPIKES was present and agreed that he and other

UBN members … would commit an armed robbery of an individual

of $2000 worth of marijuana in Chapel Hill, North Carolina. …

OLIVER handed SPIKES several hundred dollars in cash for

SPIKES to use to trick the victim into thinking that SPIKES

possessed the amount of money sufficient to purchase the marijuana.

HACKNEY and LEWIS subsequently returned to the victims’ car

with SPIKES. LEWIS and SPIKES drew firearms and attempted to

rob the victims of marijuana and money at gunpoint. When the

victims attempted to flee the vehicle, SPKES and LEWIS shot M.B.

three times. M.B. died from his gunshot wounds. As victim T.C.

ran away from the vehicle and into the woods nearby, SPIKES and

LEWIS shot at him multiple times with intent to kill. T.C. was struck

in the arm by a bullet. T.C. fell to the ground and played dead….

…

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. 2397 at 4).

A United States Magistrate Judge conducted a plea hearing pursuant to Rule 11 at which

Petitioner was represented by counsel. See (CR Doc. No. 3081). Petitioner stated, under oath, that

he wanted the Court to accept his guilty plea to Count (1); he understood his sentencing exposure

and the consequences of pleading guilty; he understood the rights he was waiving by pleading

guilty; and he was pleading guilty because he is guilty. (CR Doc. No. 3081 at 1-12). Petitioner

stated that he talked to his attorneys about the racketeering conspiracy charged in Count (1) and

that he understood the charge. (CR Doc. No. 3081 at 11). Petitioner further stated that he read the

Plea Agreement, understood it, and agreed to it including the appellate and post-conviction

waivers. (CR Doc. No. 3081 at 12-19). He also stated that read the Factual Basis, understood it,

and agreed with it. (CR Doc. No. 3081 at 19-20). Petitioner stated that nobody threated,

intimidated, or forced him to plead guilty, and that nobody has made any promises of leniency or

a light sentence other than the terms of his Plea Agreement, to induce him to plead guilty. (CR

Doc. No. 3081 at 20). Petitioner stated that he had enough time to discuss any possible defense

with his attorney and was satisfied with counsel’s services. (CR Doc. No. 3081 at 20-21).

The PSR calculated the offense level of 43 based on murder, which carried the highest

offense level. (CR Doc. No. 2558 at ¶¶ 38, 52). One level was added pursuant to U.S. Sentencing

Guidelines § 3D1.4, resulting in a combined adjusted offense level of 44. (CR Doc. No. 2558 at

¶ 54). Three levels were deducted for acceptance of responsibility based on the Petitioner’s

admission that “[b]etween 2009 and 2017, [Petitioner] did willfully, unlawfully, and feloniously

conspire with others that a member of our enterprise, the United Bloods Nation, would commit at

least two racketeering acts, including robbery, assault, and murder, in the Western District of North

Carolina.” (CR Doc. No. 2558 at ¶¶ 26, 56-57). Petitioner had a criminal history score of seven

and two points were added because Petitioner committed the instant offense while under a criminal

justice sentence. (CR Doc. No. 2558 at ¶ 65-66). This resulted in a criminal history score of nine

and a criminal history category of IV. (CR Doc. No. 2558 at ¶ 67). Petitioner’s advisory guideline

range was between 360 months and life imprisonment, however, the Plea Agreement called for a

420-month sentence. (CR Doc. No. 2558 at ¶¶ 90, 92).

At the sentencing hearing, the Petitioner stated that he remembered being placed under

oath at the Rule 11 hearing, that all of his answers to the Magistrate Judge’s questions were true

and correct, and that he would answer the questions the same if he were asked again. (CR Doc.

No. 3082).

The Court accepted Petitioner’s guilty plea and, in a Judgment entered on December 5,

2020, sentenced him to 420 months’ imprisonment followed by four years of supervised release.

(CR Doc. No. 2775). Petitioner did not appeal.

Petitioner filed the instant pro se § 2255 Motion to Vacate on March 23, 2021.2 (Doc. No.

1). He argues that:3 (1) counsel was ineffective for failing to inform the Petitioner about the

elements of the offense, which rendered his guilty plea involuntary, and for failing to subject the

Government’s case to meaningful adversarial testing; and (2) the prosecutor engaged in

2 Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prisoner mailbox rule); Rule 3(d), 28 U.S.C. foll. §

2255 (addressing inmate filings).

3 The claims have been liberally construed and restated.

misconduct by failing to allege or prove at least two overt acts related to the instant RICO offense.4

Petitioner has attached to his § 2255 Motion to Vacate a Memorandum from the Federal Bureau

of Prisons (“BOP”) stating that Petitioner did not have access to a law library during the months

of December 2020 to March 2021 due to COVID-19. (Doc. No. 1-1).

On April 1, 2021, the Court issued an Order informing the Petitioner that his § 2255 Motion

to Vacate appears to be time-barred and offering him the opportunity to file a memorandum

addressing the statute of limitations. (Doc. No. 2). The Petitioner filed a Response asking the

Court to find the § 2255 Motion to Vacate timely based on equitable tolling. (Doc. No. 3).

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 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). No response from the Government is required.

III. DISCUSSION

(A) Statute of Limitations

4 Petitioner cites 28 U.S.C. § 3535 in support of this claim, but there is no such statute.

As a preliminary matter, the § 2255 Motion to Vacate is subject to dismissal with prejudice

as time-barred.

A one-year statute of limitation applies to motions to vacate under § 2255, which runs from

the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental

action in violation of the Constitution or laws of the United States is removed, if

the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme

Court, if that right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have

been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

An otherwise time-barred petition is entitled to equitable tolling in “those rare instances

where—due to circumstances external to the party’s own conduct—it would be unconscionable to

enforce the limitation against the party.” Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002) (citing

Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)); United States v. Prescott, 221 F.3d 686,

688 (4th Cir. 2000)(“§ 2255’s limitation period is subject to equitable modifications such as

tolling.”). Equitable tolling of petitions for collateral review is available only when the petitioner

demonstrates “(1) he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S 631, 649

(2010); see Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (“Generally, a litigant seeking

equitable tolling bears the burden of establishing two elements.”).

Petitioner’s Judgment became final on December 19, 2019 when the 14-day period to file

a notice of appeal expired. See Fed. R. App. P. 4(b)(1), (b)(6); United States v. Osborne, 452 F.

App’x 294, 295-96 (4th Cir. 2011). Petitioner therefore had until December 19, 2020 to file a

timely § 2255 Motion to Vacate. The Motion to Vacate was filed more than three months late on

March 23, 2021.

Petitioner has failed to carry his burden of demonstrating that equitable tolling applies.

According to the BOP Memorandum attached to the § 2255 Motion to Vacate, Petitioner did not

have access to the prison law library between December 2020 and March 2021 because of COVID-

19. Petitioner contends that he exercised due diligence by “trying to file this § 2255 in the time

allowed” but that he was unable to do so because of prison conditions. (Doc. No. 3 at 1).

Specifically, he alleges that he did not have access to a prison library or case law for an unspecified

period and that “widespread COVID-19 pandemic in the prison system” was “clearly [an]

extraordinary circumstance[].” (Id.).

Petitioner’s allegations are insufficient to support equitable tolling. It appears that he

lacked access to the prison law library for, at most, 19 days of the one-year limitations period. His

allegation of due diligence is completely conclusory and he fails to explain how this 19-day loss

of access to a law library prevented him from timely filing his § 2255 Motion to Vacate. Moreover,

he filed the § 2255 Motion to Vacate in March 2021, during the time when he allegedly lacked

access to the prison library. Petitioner has failed to carry his burden of demonstrating that timely

filing was precluded by extraordinary circumstances, and therefore, the § 2255 Motion to Vacate

is subject to dismissal with prejudice as time-barred.

Even if the § 2255 Motion to Vacate were timely, however, it would be denied on the

merits because the Petitioner’s claims waived and conclusively refuted by the record.

(B) Merits

(1) Ineffective Assistance of Counsel

Petitioner contends that counsel was ineffective for providing misadvice which rendered

his guilty plea involuntary, and for failing to subject the Government’s case to adversarial testing.

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, Petitioner must first establish deficient performance by

counsel and, second, that the deficient performance prejudiced him. 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 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).

First, Petitioner contends that counsel performed deficiently by failing to tell him that the

Government was been required to prove, beyond a reasonable doubt, that overt acts are related to

the RICO conspiracy.

RICO conspiracy requires proof of: “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. Pinson, 860 F.3d 152, 161 (4th Cir. 2017) (cleaned up) (citing Salinas v. United States,

522 U.S. 52, 62 (1997)). A “pattern of racketeering activity” requires proof that “the conspiracy

involved or would have involved the commission of [at least] two racketeering acts.” United States

v. Taylor, 942 F.3d 205, 213 (4th Cir. 2019). To prove a “pattern of racketeering activity,” the

evidence must show that “the racketeering predicates are related and that they amount to or pose

a threat of continued criminal activity.” Pinson, 860 F.3d at 161 (quoting H.J. Inc. v. NW Bell Tel.

Co., 492 U.S. 229, 239 (1989). Racketeering acts are related if they “have the same or similar

purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by

distinguishing characteristics and are not isolated events.” Id. The RICO statute defines qualifying

racketeering acts to include certain state law crimes, such as robbery and murder. 18 U.S.C. §

1961(1).

The Second Superseding Indictment alleged the foregoing elements in detail and Petitioner

stated at the Rule 11 hearing that he discussed the charge with counsel and understood the charge.

Further, Petitioner admitted in the Factual Basis: UBN is an “enterprise;” the purposes of the

enterprise included promoting and enhancing its members’ and associates’ activities including

robberies, murders, and other criminal activities; that he was a part of a nine-person group who

beat, tazed, and shot a victim, for which Petitioner was convicted of Assault with a Deadly Weapon

Inflicting Serious Injury on May 8, 2012; that he engaged in an attempted robbery, murder of one

victim, and shooting of another victim on July 26, 2016; that he agreed that he or some other

member of the conspiracy would commit two or more racketeering acts, and that he personally

committed two or more racketeering acts including acts involving robbery and murder; and that

he was a member of the UBN enterprise as a part of which he knowingly and intentionally agreed

that he or some other member of the conspiracy would commit at least two racketeering acts. As

part of his acceptance of responsibility, he admitted that “[b]etween 2009 and 2017, [he] did

willfully, unlawfully, and feloniously conspire with others that a member of our enterprise, the

United Bloods Nation, would commit at least two racketeering acts, including robbery, assault,

and murder, in the Western District of North Carolina.” (CR Doc. No. 2558 at ¶ 26).

Petitioner’s sworn admissions clearly establish that Petitioner actively engaged in a RICO

enterprise whose purpose included robberies, murders, and other criminal activities, that he

conspired to commit these activities, and that he participated in the commission of at least two

such acts. Petitioner’s present self-serving contentions that he did not understand the elements of

the offense, that his conduct did not satisfy the elements of RICO conspiracy, and that his guilty

plea was not knowingly and voluntarily entered, are conclusively refuted by his sworn statements

to the contrary and are rejected. Blackledge 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).

The Petitioner cannot demonstrate prejudice because he fails to allege or demonstrate that

he would not have pleaded guilty, and would have insisted on a trial, but for counsel’s alleged

misadvice. The extremely favorable Plea Agreement resulted in a guaranteed sentence of 420

months’ imprisonment for the RICO conspiracy, which was punishable by up to life imprisonment,

as well as the dismissal of five additional serious charges including murder. It would not have been

reasonable for any defendant to reject the plea and proceed to trial under these circumstances.

Petitioner also suggests that counsel was deficient for failing to subject the Government’s

case to meaningful adversarial testing. However, Petitioner’s knowing and voluntary guilty plea

to RICO conspiracy “constitute[d] a waiver of all nonjurisdictional defects, including the right to

contest the factual merits of the charges.” United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993).

The entry of his plea excused counsel from opposing the Government’s case; any suggestion that

counsel should have insisted that the Government prove its case despite Petitioner’s entry of a

knowing and voluntary guilty plea is frivolous and conclusively refuted by the record.

Therefore, Petitioner’s claims of ineffective assistance of counsel would be denied on the

merits if they were not time-barred.

(2) Prosecutorial Misconduct

Finally, Petitioner argues that the prosecutor engaged in misconduct by failing to allege or

prove at least two overt acts related to the RICO conspiracy.

This claim alleges an indictment error and insufficiency of the evidence; it appears that

Petitioner is attempting to characterize it as one of prosecutorial misconduct to avoid the post-

conviction waiver in his plea agreement. However, that waiver is binding and enforceable. See

United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); Lemaster, 403 F.3d at 200.

Even if these claims were not waived, they are conclusively refuted by the record. The

Second Superseding Indictment alleges that Petitioner engaged in Overt Act Nos. 14, 19, and 72,

all of which are related to the UBN conspiracy. See Section (B)(1), supra. Petitioner admitted in

the Factual Basis that he engaged in the UBN enterprise and that the Overt Acts were part of the

conspiracy and enterprise. Id. There was no indictment error or insufficiency in the Factual Basis.

Moreover, any such claims were waived by Petitioner’s knowing and voluntary guilty plea. See

Willis, 992 F.2d at 490.

Therefore, even if these claims were timely filed, they would be denied because they are

waived and conclusively refuted by the record.

IV. CONCLUSION

For the foregoing reasons, the § 2255 Motion to Vacate is dismissed with prejudice as time-

barred and, alternatively, denied on the merits.

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: April 26, 2021

Frank D. Whitney 27

United States District Judge □□□

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