# Sutton v. United States

> District Court, N.D. West Virginia · July 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10726012

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** July 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10726012

## How later opinions describe it (automated extraction)

- applying New York attempt statute to career offender sentencing guideline
- holding that a violation of § 220.16(1) was a “serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii)
- holding that “the two-part [Strickland standard] applies to challenges to guilty pleas based on ineffective assistance of counsel.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DERRICK SUTTON,
Petitioner,
v. CIVIL ACTION NO. 1:18CV163
CRIMINAL ACTION NO. 1:17CR27
(Judge Keeley)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
Pending before the Court is the amended pro se motion filed by
the petitioner, Derrick Sutton (“Sutton”), to vacate, set aside, or
correct a sentence pursuant to 28 U.S.C. § 2255, and a motion for
appointment of counsel. For the reasons that follow, the Court
DENIES Sutton’s § 2255 motion (Dkt. No. 11),1 DENIES AS MOOT his
motion for appointment of counsel (Dkt. No. 24), and DISMISSES this
case WITH PREJUDICE.
I. BACKGROUND
A. Procedural History
On August 28, 2017, Sutton pleaded guilty to one count of
possession with intent to distribute cocaine base, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Case No. 1:17CR27, Dkt.
1 All docket numbers, unless otherwise noted, refer to Case
No. 1:18CV163.
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
No. 56). On January 3, 2018, the Court sentenced him to 151 months
of imprisonment followed by 3 years of supervised release (Id.,
Dkt. No. 95).
On January 11, 2018, Sutton appealed to the United States
Court of Appeals for the Fourth Circuit, questioning whether his
counsel had rendered ineffective assistance by failing to advise
him that he would likely be sentenced as a career offender (Id.,
Dkt. No. 97). On June 25, 2018, the Fourth Circuit affirmed this
Court’s judgment (Id., Dkt. Nos. 137, 138).
On August 21, 2018, Sutton, acting pro se, filed a motion
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence, asserting again that he had received ineffective
assistance based on his counsel’s failure to advise him of the
possibility that he could be sentenced as a career offender (Id.,
Dkt. No. 150; Case No. 1:18CV163, Dkt. No. 1). On May 15, 2018,
Magistrate Judge Michael J. Aloi directed the Government to respond
to Sutton’s motion (Case No. 1:17CR27, Dkt. No. 48).
On November 26, 2018, Sutton moved to amend his § 2255 motion,
which Magistrate Judge Aloi granted (Id., Dkt. Nos. 161, 169).
Thereafter, on April 2, 2019, Magistrate Judge Aloi ordered the
2
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
Government to respond to Sutton’s motion (Id., Dkt. No. 169).
Sutton has advanced three grounds in this amended motion: (1) that
his counsel’s performance was objectively unreasonable; (2) that he
was prejudiced by his counsel’s deficient performance; and (3) that
he is entitled to an evidentiary hearing (Id., Dkt. No. 163).
Following the Government’s response, Sutton did not file a reply
brief, but instead moved the Court to appoint counsel for him to
obtain copies of various statutes and to assist with the case (Id.,
Dkt. No. 180).
II. APPLICABLE LAW
28 U.S.C. § 2255(a) permits federal prisoners who are in
custody to assert the right to be released if “the sentence was
imposed in violation of the Constitution or laws of the United
States,” if “the court was without jurisdiction to impose such
sentence,” or if “the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.”
A petitioner bears the burden of proving any of these grounds by a
preponderance of the evidence. See Miller v. United States, 261
F.2d 546, 547 (4th Cir. 1958).
3
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
III. DISCUSSION
Sutton’s central argument, that his attorney provided
ineffective assistance by failing to object at sentencing to his
career offender designation, hinges on a single premise: that his
prior convictions under N.Y. Penal Law § 220.16(1) for attempted
criminal possession of a controlled substance in the third degree
and criminal possession of a controlled substance in the third
degree do not qualify as predicate offenses for a career offender
sentencing enhancement. This assertion is factually and legally
incorrect.
Because Sutton’s prior convictions are both New York state
felony offenses involving controlled substances, the Court must
analyze the underlying statutes to determine if they match the
generic definitions of “attempt” and “controlled substance
offense.”
A. Categorical and Modified Categorical Approaches
“[S]entencing courts must compare the state and generic
elements of such statutes as well as the elements of the underlying
substantive statutory offense when determining whether a prior
attempt conviction qualifies as a controlled substance offense.”
4
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
United States v. Dozier, 848 F.3d 180, 182 (4th Cir. 2017).
Pursuant to § 4B1.1 of the United States Sentencing Guidelines, a
defendant is a career offender if, among other factors, “[he] has
at least two prior felony convictions of either a crime of violence
or a controlled substance offense.” U.S.S.G. § 4B1.1(a).
In addressing whether a prior conviction triggers a Guideline
sentencing enhancement, if the underlying statute is indivisible-
i.e., it does not contain alternative elements, the Court applies
the categorical approach. The point of this approach is “not to
determine whether the defendant’s conduct could support a
conviction for a [predicate offense], but to determine whether the
defendant was in fact convicted of a crime that qualifies as a
[predicate offense.]” Dozier, 848 F.3d at 183 (internal citations
omitted). For a prior conviction to qualify as a predicate offense,
“the elements of the prior offense [must] ‘correspond[] in
substance’ to the elements of the enumerated offense.” Id.
(internal citations omitted). Thus, under the categorical approach,
a court focuses on the elements of the prior offense instead of on
the conduct underlying the conviction.
Where a crime is defined with alternative elements, courts may
5
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
review a limited set of documents to determine which version of the
statute formed the basis of the prior conviction. United States v.
Williams, 898 F.3d 323 (3d Cir. 2018) (citing Descamps v. United
States, 570 U.S. 254, 261-62, 133 S.Ct. 2276 (2013)). “Such a
statute is termed ‘divisible’” and this more record-intensive
analysis is called the “modified categorical approach.” Williams,
898 F.3d at 333. Put another way, a statute phrased in the
disjunctive, using “or” to offset subsections, is divisible “if it
lists ‘elements’ of the offense and not ‘means’ of committing that
offense. . . . ‘Elements are the constituent parts of a crime’s
legal definition - the things the prosecution must prove to sustain
a conviction.’” Mathis v. United States, __ U.S. __, 136 S.Ct. 2243
(2016). The purpose of the modified categorical approach is to
“help effectuate the categorical analysis when a divisible statute
. . . renders opaque which element played a part in the defendant’s
conviction.” United States v. Abbott, 748 F.3d 154, 157-58 (3d Cir.
2014) (citing Descamps, 133 S.Ct. at 2283)).
1. Categorical Approach and New York Attempt Statute
In the Fourth Circuit, generic attempt involves (1) culpable
intent to commit the crime charged, and (2) a substantial step
6
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
towards the completion of the crime. Dozier, 848 F.3d at 186. “A
substantial step is defined as a ‘direct act in a course of conduct
planned to culminate in commission of a crime that is strongly
corroborative of the defendant’s criminal purpose.’” Id. (quoting
United States v. Engle, 676 F.3d 405, 423 (4th Cir. 2012)
(additional citations omitted)). A substantial step “is more than
mere preparation but less . . . than completion of the crime.” Id.
The New York attempt statute provides that “[a] person is
guilty of an attempt to commit a crime when, with intent to commit
a crime, he engages in conduct which tends to effect the commission
of such crime.” N.Y. Penal Law § 110.00. Because this statute does
not include alternative elements, the statute is indivisible. See,
e.g., Mathis, 136 S.Ct. at 2249. Two New York criminal laws also
enumerate different classification categories depending on the
scope and means of punishment for the underlying statutory offense.
Relevant here, N.Y. Penal Law § 110.05 provides that “an attempt to
commit a crime is a . . . [c]lass C felony when the crime attempted
is a class B felony.”2 An individual convicted of a class B felony
2 In addition to attempted possession of a controlled
substance with intent to sell, Sutton is convicted of criminal
possession of a controlled substance in the third degree, in
7
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
is exposed to a maximum of twenty-five years of imprisonment, while
an individual convicted of a class C felony faces a maximum
sentence of fifteen years of imprisonment. N.Y. Penal Law §
70.00(2)(b), (c).
Therefore, to be convicted of attempt in New York, a defendant
must have a specific intent to commit a specific crime—“there can
be no attempt to commit a crime that does not involve a specific
intent.” Holmes v. Ricks, 378 F.Supp.2d 171, 180 (W.D.N.Y. 2004)
(citing People v. Bracey, 41 N.Y.2d 296, 300, 360 N.E.2d 1094
(1977);3 People v. McDavis, 97 A.D.2d 302, 303-04, 469 N.Y.S.2d 508
(4th Dept. 1983)). Regarding the overt act requirement for attempt
in New York:
[A] person can be convicted of an attempt to commit an
offense only if it is proven that he came “very near” or
violation of N.Y. Penal Law § 220.16(1). This statute states, in
pertinent part, “[a] person is guilty of criminal possession of a
controlled substance in the third degree when he knowingly and
unlawfully possesses a narcotic drug with intent to sell it. . .
. Criminal possession of a controlled substance in the third
degree is a class B felony.”
3 “To the extent the statutory definition of a prior offense
has been interpreted by the state’s highest court, this
interpretation informs and constrains our analysis of the state
law.” United States v. Dozier, 848 F.3d 180, 184 (4th Cir. 2017)
(cleaned up).
8
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
“dangerously near” to successfully completing the
intended crime, see People v. Acosta, 80 N.Y.2d 665, 670,
609 N.E.2d 518 (1993), “‘carr[ying] the project forward
within dangerous proximity to the criminal end to be
attained,’” People v. Bracey, 41 N.Y.2d 296, 300, 360
N.E.2d 1094 (1977) (additional citation omitted).
United States v. King, 325 F.3d 110, 114 (2d Cir. 2003).
Based on these elements, the degree of intent required under
New York’s general attempt statute is not greater than the intent
required under the generic definition, and the New York application
of an overt act corresponds in substance to the generic definition
of a substantial act. See Taylor, 495 U.S. at 599, 110 S.Ct. 2143.
Accordingly, under the requisite categorical approach, Sutton’s
prior state conviction for attempt qualifies as a generic attempt
offense.
2. Modified Categorical Approach and New York Penal Law
§ 220.16
The Court turns next to consider whether the underlying
offense matches the generic definition of a “controlled substance
offense.” The term “controlled substance offense” is defined as:
[A]n offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that
prohibits the manufacture, import, export, distribution,
or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance
9
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
(or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b). A controlled substance offense also includes
the offenses of “aiding and abetting, conspiring, and attempting to
commit such offenses.” U.S.S.G. § 4B1.2 cmt. n.1.
“In N.Y. Penal Law § 220.16, thirteen subsections set out in
the disjunctive define when ‘[a] person is guilty of criminal
possession of a controlled substance in the third degree.’”
Stevenson v. United States, Criminal No. 3:12-CR-145, Civil Action
No. 3:18-CV-0057, 2019 WL 845418 at *6 (M.D. Pa. Feb. 21, 2019).
Each subsection identifies types and/or quantities of drugs, and
knowing and unlawful possession applies to each subsection. Seven
subsections require “intent to sell.” § 220.16(1)-(7). The
remaining six subsections concern the weight of the prohibited
substance. § 220.16(8)-(13). Therefore, the structure and various
elements in the subsections of N.Y. Penal Law § 220.16 support the
conclusion that the statute is divisible and the modified
categorical approach may be applied to determine if a violation of
the statute serves as a predicate offense for a career offender
enhancement. See also, Felder v. United States, 5:09-CR-676-3, 2016
WL 6110477, at *2 (N.D.N.Y. Mar. 1, 2016); United States v. Taylor,
10
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
No. 11 CR 310, 2021 WL 599 1866, at *3-4 (S.D.N.Y. Nov. 30, 2012)
(citing United States v. Brown, 97 F. App’x 348, 349-50 (2d Cir.
2004)); Wesley v. United States, No. 06-CV-3717 (NGG), 2008 WL
2640477, at *2 (E.D.N.Y. July 3, 2008) (finding that § 220.16(1)
was “clearly . . . a ‘controlled substance offense’ within the
meaning of U.S.S.G. § 4B1.1(a)”). See, e.g., United States v. King,
325 F.3d 110, 114 (2d Cir. 2003) (holding that a violation of §
220.16(1) was a “serious drug offense” under 18 U.S.C. §
924(e)(2)(A)(ii)).
A statute is divisible, moreover, when it “can be violated by
the possession of and intent to distribute many different drugs,
the types of which can increase the prescribed range of penalties.”
United States v. Abbott, 748 F.3d 154, 157-58 (3d Cir. 2014). To
clarify which elements of a divisible statute played a part in the
defendant’s conviction, a court must apply the modified categorical
approach. See Descamps, 570 U.S. at 260. “Once a sentencing court
determines the modified categorical approach applies, the court may
look beyond the face of the statute to the “the terms of the
charging document, the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the factual basis for
11
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
the plea was confirmed by the defendant, or to some comparable
judicial record of this information.” Shepard v. United States, 544
U.S. 13, 26, 125 S.Ct. 1254 (2005).
Here, Sutton attached two Certificates of Disposition
Indictment to his combined reply and motion for appointment of
counsel (Dkt. No. 24). These Certificates concern his prior
convictions for “Attempted Criminal Possession of a Controlled
Substance 3rd Degree PL 110-220.16 01 CF (Dangerous Drug)” and
“Criminal Possession of a Controlled Substance 3rd Degree PL 220.16
01 BF (Cocaine)” (Dkt. No. 24-2 at 2-3). In New York, “[a]
certificate issued by a criminal court, or the clerk thereof,
certifying that a judgment of conviction against a designated
defendant has been entered in such court, constitutes presumptive
evidence of the facts stated in such certificate.” N.Y. Crim. Pro.
Law § 60.60(1).
Based on the Court’s review of these certificates, Sutton was
convicted of an attempted violation of N.Y. Penal Law § 220.16(1)
on November 27, 2007 (Dkt. No. 24-2 at 3). Subsequently, on January
27, 2010, he was convicted of violating N.Y. Penal Law § 220.16(1).
Id. at 2.
12
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
N.Y. Penal Law § 220.16(1) states, in pertinent part, “[a]
person is guilty of criminal possession of a controlled substance
in the third degree when he knowingly and unlawfully possesses a
narcotic drug with intent to sell it. . . . Criminal possession of
a controlled substance in the third degree is a class B felony.”
This relevant offense category would result in a felony conviction
and a maximum sentence of imprisonment that exceeds one year.4 N.Y.
Penal Law § 70.00(2)(b) (“For a class B felony, the term shall be
fixed by the court and shall not exceed twenty-five years.”).
Finally, Sutton’s argument that the term “sell” in N.Y. Penal
4
In New York, an attempt to commit a crime is a class C felony when
the crime attempted is a class B felony. N.Y. Penal Law § 110.05.
Thus:
[The defendant]’s attempt to sell a controlled substance
was punishable by one year or more of imprisonment, and
thus was a qualifying predicate for career offender
sentencing. Although the [New York] penal code permits a
first time offender convicted of a class C felony to
receive as little as a parole supervision sentence, [the
defendant] could have received a sentence of up to
fifteen years. See N.Y. Penal Law §§ 70.00, 70.70.
Therefore, even after [United States v.] Simmons, [649
F.3d 237 (4th Cir. 2011)] [the] conviction may qualify as
a predicate offense.
United States v. Foreman, 519 Fed. Appx. 131, 134 (4th Cir. 2013)
(applying New York attempt statute to career offender sentencing
guideline).
13
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
Law § 220.16(1) is broader than “distribute” is incorrect.
According to 21 U.S.C. § 802(11), the term “distribute” means “to
deliver (other than by administering or dispensing) a controlled
substance or a listed chemical.” “Deliver” means “the actual,
constructive, or attempted transfer of a controlled substance or a
listed chemical, whether or not there exists an agency
relationship.” 21 U.S.C. § 802(8). As the Second Circuit has
discussed, “an attempt to sell—or to offer or agree to sell—a
controlled substance “involv[es] . . . distributing . . . a
controlled substance.” United States v. Wallace, 937 F.3d 130, 143
(2d Cir. 2019) (quoting King, 325 F.3d at 114). Therefore, the
underlying offense, criminal possession of a controlled substance
in the third degree, is a categorical match to a generic controlled
substance offense. Consequently, Sutton’s prior convictions for
attempt and criminal possession of a controlled substance in the
third degree are controlled substance offenses, and he was properly
deemed a career offender under U.S.S.G. § 4B1.1.
B. Ineffective Assistance of Counsel Claim
To succeed on an ineffective assistance of counsel claim, a
“petitioner must show, by a preponderance of the evidence, that
14
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1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
(1) ‘counsel’s performance was deficient,’ and (2) ‘the deficient
performance prejudiced the defense.’” Beyle v. United States, 269
F. Supp. 3d. 716, 726 (E.D. Va. 2017) (quoting Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984)); see
also Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366 (1985)
(holding that “the two-part [Strickland standard] applies to
challenges to guilty pleas based on ineffective assistance of
counsel.”).
To satisfy the first prong, the petitioner must show that
counsel’s conduct “fell below an objective standard of
reasonableness . . . under prevailing professional norms.”
Strickland, 466 U.S. at 687-88. But “[j]udicial scrutiny of
counsel’s performance must be highly deferential” because “[i]t is
all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too
easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.” Id. at 689. “Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of
15
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1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
reasonable professional assistance.” Id.
To satisfy the second prong, in the context of a guilty plea
a petitioner “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. “The
[p]etitioner must ‘satisfy both prongs, and a failure of proof on
either prong ends the matter.’” Beyle, 269 F. Supp.3d at 726
(quoting United States v. Roane, 378 F.3d 382, 404 (4th Cir.
2004)).
In the memorandum in support of his § 2255 motion, Sutton
offers four (4) reasons in support of his claim that his conviction
and sentence were imposed in violation of his Sixth Amendment right
to the effective assistance of counsel. First, Sutton alleges that
his counsel failed to conduct basic legal research regarding
whether his prior New York convictions were valid predicate
offenses for application of the career offender enhancement.
Second, Sutton criticizes his counsel’s decision to concede the
career offender enhancement and argue for a variance. Third, Sutton
claims his counsel should have objected to the career offender
designation in the presentence investigation report. Finally,
16
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
Sutton contends that counsel failed to explain “matters to the
extent reasonably necessary to permit [him] to make informed
decisions about his representation and defense.” (Dkt. No. 163-2 at
2).
Importantly, Sutton’s assertions about his attorney’s
deficient performance are contradicted by the record. Absent clear
and convincing evidence to the contrary, a defendant is bound by
the representations he makes under oath during a plea colloquy or
at sentencing. See United States v. Lemaster, 403 F.3d 216, 222
(4th Cir. 2005); Blackledge v. Allison, 431 U.S. 63, 74-75, 97
S.Ct. 1621 (1977)). At Sutton’s plea hearing, the Court
specifically addressed the potential implication of a career
offender enhancement:
THE COURT: Okay. Have . . . you ever been convicted in
state court of a drug felony offense.
DEFENDANT SUTTON: Yes, ma’am.
THE COURT: All right. And that would be in New York?
DEFENDANT SUTTON: Yes, ma’am.
*****
THE COURT: Okay. How many felonies are there?
MR. DELLIGATTI: Well there’s two.
17
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
THE COURT: Two. Is this going to put your client at risk
of a Chapter Four enhancement for career offender?
MR. DELLIGATTI: It could. There’s been some difficulty in
determining–and I’ve been in contact with his counsel in
New York as to when certain pleas have been entered and
whether they were drug court deferral types of pleas,
whether the dates are accurate or not, so there is some
– and Mr. Sutton is aware of those issues.
THE COURT: All right. So, Mr. Sutton, when I say possible
enhancement for career offender or I assume not armed
career criminal but career offender?
MR. DELLIGATTI: Yes, Your Honor.
THE COURT: Do you understand that if you have two prior
drug felony convictions that come within the definition
of our federal law that you could have a significant
enhancement to your sentence because of your two prior
drug felony convictions?
DEFENDANT SUTTON: Yes, ma’am.
THE COURT: Are you sure? You know, this isn’t–is this
something new you’re hearing from me?
DEFENDANT SUTTON: No, it’s not new, ma’am.
THE COURT: Okay. Do you understand that there will be a
sentencing hearing and all of that will be discussed at
the sentencing hearing?
DEFENDANT SUTTON: Yes, ma’am.
THE COURT: Okay. So Mr. Delligatti sounds like he’s on
top of it and has explained it to you. Do you agree with
that?
18
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
DEFENDANT SUTTON: Yes, ma’am.
*****
THE COURT: Mr. Sutton, has Mr. Delligatti adequately
represented you in this matter?
DEFENDANT SUTTON: Yes, ma’am.
THE COURT: Has he left anything undone that you
think–that you think he should have undertaken on your
behalf?
DEFENDANT SUTTON: No, ma’am.
Case No. 1:17CR27, Dkt. No. 108 at 25:16-21, 32:10-33:15, 60:13-19
(emphasis added). Sutton also confirmed at his plea hearing that no
one had predicted his exact sentence, and that he understood that
the Court would consider many factors to determine a reasonable
sentence. Id. at 59:12-19.
At sentencing, Sutton agreed that he did not have any evidence
of ineffective assistance of counsel (Id., Dkt. No. 109 at 27:17-
24). Additionally, he confirmed that the Court had discussed the
potential application of the career offender enhancement during his
plea hearing. Further, his attorney informed the Court that the two
had discussed this issue:
THE COURT: Yes. Okay. I would remind you that at the time
I took your plea there was a discussion about this issue
of the career offender. Do you recall that?
19
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
THE DEFENDANT: Yes.
THE COURT: Okay. Mr. Delligatti, you addressed it at that
time and said that you and Mr. Sutton had discussed the
possibility that he was going to be a career offender,
correct?
MR. DELLIGATTI: Yes, Your Honor.
THE COURT: Okay. And so at the time he signed this plea
agreement he was aware?
MR. DELLIGATTI: Yes, Your Honor.
THE COURT: Okay. Thank you.
Id. at 27:25-28:12.
Critically, Sutton’s statements at sentencing that he was
aware of the career offender enhancement and that he did not have
any evidence of ineffective assistance of counsel bind him here
unless he can show clear and convincing evidence to the contrary.
He has failed to do so because he has not alleged any facts upon
which relief can be granted, and, indeed, his argument centers on
a mistaken understanding of the law. Therefore, because he cannot
overcome the strong presumption that his attorney’s conduct was
within the wide range of reasonable professional assistance, he
cannot establish that his counsel rendered ineffective assistance.
Even if Sutton could satisfy the first Strickland prong, he
20
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
cannot meet the second. Critically, he does not argue that any of
his attorney’s alleged deficiencies would have impacted his
ultimate guilty plea. Instead, Sutton’s position is that “[h]ad
[he] understood that he had a viable defense to the application of
the ‘career offender’ designation . . . [he] would have objected
himself, and to the extent that counsel refused to raise the issue,
he would have requested substitute counsel due to the conflict of
interest between counsel and himself over his defense.” Id. at 10-
11.
Fatal to Sutton’s argument is his failure to contend that, but
for his counsel’s errors, he would have insisted on going to trial.
Indeed, his brief even attaches advice from his appellate attorney
that “[b]ecause [he] entered a plea, [he] must show that but for
[his] attorney’s errors[, he] would not have pleaded guilty.” (Dkt.
No. 11-4 at 2) (emphasis added). Yet, Sutton has not made this
point. Moreover, as previously analyzed at length, his contention
that his prior New York drug felony convictions are not controlled
substance offenses is legally and factually incorrect, and any
argument made or objection raised in this vein would have been
futile. Therefore, Sutton cannot prevail on his claim of
21
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
ineffective assistance of counsel.
IV. EVIDENTIARY HEARING
Under § 2255, a court must grant a hearing to “determine the
issues and make findings of fact and conclusions of law” unless it
can be “conclusively shown” through the case record that a
petitioner is not entitled to relief. 28 U.S.C. § 2255(b). Sutton
has not raised any material issues that remain in dispute and
therefore cannot demonstrate the need for an evidentiary hearing.
United States v. Witherspoon, 231 F.3d 923 (4th Cir. 2000);
McCarver v. Lee, 221 F.3d 583, 598 (4th Cir. 2000). Moreover, an
evidentiary hearing is not necessary when a court can properly
conclude without further production of evidence that an ineffective
assistance of counsel claim is meritless. Strickland, 466 U.S. at
700. As the discussion above makes evident, Sutton’s allegations of
ineffective assistance of counsel are meritless, and an evidentiary
hearing would not cure any deficiencies in his arguments.
V. MOTION FOR APPOINTMENT OF COUNSEL
There is no constitutional right to appointed counsel in a
§ 2255 proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555
(1987). “[T]he right to appointed counsel extends to the first
22
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
appeal of right and no further.” Id. The Court should appoint
counsel to represent an indigent defendant only after a showing of
particular need or exceptional circumstances has been made. See 28
U.S.C. § 1915(e)(1); Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975).
“The question of whether such circumstances exist in any particular
case hinges on characteristics of the claim and the litigant.”
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir 1984). Nonetheless,
the Rules Governing Section 2255 Proceedings of the United States
District Courts require that counsel be appointed in certain
circumstances, such as upon a determination that an evidentiary
hearing is required or if necessary for effective discovery. See
Rules 6(a) and 8(c) of the Rules Governing § 2255 Proceedings.
Although he asserts he needs counsel to access statutes and
case law, Sutton has successfully filed his § 2255 petition and
thoroughly briefed the matter. Nor does his lack of legal training
establish a particular need or an exceptional circumstance that
would justify the appointment of counsel in this case. As noted,
the Court does not require an evidentiary hearing and finds that
discovery is unnecessary because Sutton’s arguments are without
merit. Therefore, Sutton is not entitled to the appointment of
23
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
counsel and the Court accordingly DENIES his motion AS MOOT (Dkt.
No. 24).
VI. CONCLUSION
For the reasons discussed, the Court DENIES Sutton’s amended
§ 2255 motion (Dkt. No. 11), DENIES AS MOOT the motion for
appointment of counsel (Dkt. No. 24), and DISMISSES this case WITH
PREJUDICE.
It is so ORDERED.
The Clerk SHALL enter a separate judgment order and transmit
copies of both orders to the pro se petitioner by certified mail,
return-receipt-requested, and to counsel of record by electronic
means. The Court DIRECTS the Clerk to strike this case from the
Court’s active docket.
VII. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255
Proceedings, the district court “must issue or deny a certificate
of appealability when it enters a final order adverse to the
applicant” in such cases. If the court denies the certificate, “the
parties may not appeal the denial but may seek a certificate from
24
SUTTON V. USA 1:18CV163
1:17CR27
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT
OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE
the court of appeals under Federal Rule of Appellate Procedure 22.”
28 U.S.C. § 2255(a).
The Court finds it inappropriate to issue a certificate of
appealability in this matter because Sutton has not made a
“substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by
demonstrating that reasonable jurists would find that any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. See Miller–El v.
Cockrell, 537 U.S. 322, 336–38 (2003). Upon review of the record,
the Court concludes that Sutton has failed to make the requisite
showing and, therefore, DENIES issuing a certificate of
appealability.
DATED: July 30, 2021
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726012. Public record. Not legal advice.