Petition for Writ of Certiorari — Zonta Tavarus Ellison, Petitioner v. United States

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FILED: October 23, 2020

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-6765

(3:19-cv-00441-FDW)

ZONTA TAVARUS ELLISON

Petitioner - Appellant

UNITED STATES OF AMERICA

Respondent - Appellee

JUDGMENT

In accordance with the decision of this court, a certificate of appealability is

denied and the appeal is dismissed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR. CLERK

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-6765

ZONTA TAVARUS ELLISON,

Petitioner - Appellant,

UNITED STATES OF AMERICA,

Respondent - Appellee.

Appeal from the United States District Court for the Western District of North Carolina, at

Charlotte. Frank D. Whitney, District Judge. (3:19-cv-00441-FDW)

Decided: October 23, 2020

Submitted: October 20, 2020

Before GREGORY, Chief Judge, DIAZ, Circuit Judge, and SHEDD, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Zonta Tavarus Ellison, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Zonta Tavarus Ellison seeks to appeal the district court’s order construing his 28

U.S.C. § 2241 petition and subsequent motion for stay as 28 U.S.C. § 2255 motions and

dismissing them as successive and unauthorized. The orders are not appealable unless a

circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B).

A certificate of appealability will not issue absent “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here, the district court denies relief

on procedural grounds, the prisoner must demonstrate both that the dispositive procedural

ruling is debatable and that the motion states a debatable claim of the denial of a

constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).

We have independently reviewed the record and conclude that Ellison has not made

the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the

appeal. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

DISMISSED

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:19-cv-00441-FD W

(3:1 l-cr-00404-FDW-DSC-l)

ZONTA TAVARAS ELLISON

Petitioner,

vs.

UNITED STATES OF AMERICA5

Respondent.

)

ORDER

THIS MATTER is before the Court on Petitioner’s uncaptioned filing in which he appears

to seek relief under 28 U.S.C. § 2241 [CV Doc. I]1 and Petitioner’s “Motion for stay proceeding

in response to court’s November 5, 2019 order whether petitioner would like the court to construe

his petitioner for writ of Habeas Corpus relief pursuant to 28 USC § 2241 and 28 USC § 2255(e)

saving clause as a motion arising under USC §2255” [CV Doc. 10].

On September 9, 2019, Petitioner filed an uncaptioned motion in which Plaintiff purports

to seek relief under 28 U.S.C. § 2241 “challenging not the validity but the execution of his sentence

- which is the essence of Habeas - legality of his imprisonment.” [See CV Doc. 1 at 4]. Petitioner

was found guilty by a jury and convicted of three counts of possession with intent to distribute

cocaine base, in violation of 21 U.S.C. §§ 841 and 851, after proceeding pro se (with stand by

1 Citations to the record herein contain the relevant document number referenced preceded by either the

letters “CV,” denoting that the document is listed on the docket in the civil case file number 3:19-cv-00441 FDW, or the letters “CR,” denoting that the document is listed on the docket in the criminal case file number

3:11 -cr-00404-FDW-DSC-1.

Case 3:19-cv-00441-FDW, Document 11 Filed 03/23/20 Page 1 of 4

counsel) in a jury trial.2 [CR Doc. 51: Judgment]. Petitioner appealed his conviction to the Fourth

Circuit Court of Appeals, in part based on the District Court’s alleged error in determining that

Petitioner knowingly, intelligently, and voluntarily waived his Sixth Amendment right to counsel.

[CR Doc. 35], The Fourth Circuit affirmed, holding that Petitioner “clearly and unequivocally

asserted his right to self-representation” and that his “election to proceed pro se also was knowing,

intelligent, and voluntary.” [CR Doc. 74 at 2-3]. On January 21, 2016, Petitioner filed a Section

2255 motion to vacate, raising claims of prosecutorial misconduct, denial of his ability to present

an entrapment defense, ineffective assistance of counsel, use of an invalid prior conviction to

enhance his sentence, and violation of double jeopardy. [Civil Case No. 3:16-cv-40 (“Case No.

3:16-cv-40”), Doc. 1], Petitioner’s motion to vacate was denied on the merits and dismissed, rid..

Doc. 5],

In the current motion, Petitioner claims he is challenging “the execution of his sentence”

under Section 2241, not the validity of his conviction or sentence. [CV Doc. 1 at 4]. Petitioner

contends that the undersigned acted in “a ministerial capacity” and “in criminal contempt of court”

in the conduct of Petitioner’s trial. It appears the onus of Petitioner’s complaint is that the Court

improperly allowed Petitioner to proceed pro se at trial without giving him more time to prepare

his defense. [Id. at 6]. Petitioner also argues he was not provided certain evidence by his attorney

to be used in Petitioner’s defense and that other essential evidence necessary to find him guilty

was lacking. [Id. at 7-9]. As relief, Petitioner seeks that the case “be recalled” and that he be

2 A foil recitation of the factual and procedural background of the criminal proceedings related to the

pending motion, as well as Petitioner’s previous Section 2255 motion to vacate, can be found at Civil

Case No. 3:16-cv-40-FDW, Doc. 5.

Case 3:19-cv-00441-FDW Document 11

Filed 03/23/20 Page 2 of 4

granted an evidentiary hearing to establish certain “material facts” that will prove he has been

falsely imprisoned.3 [Id. at 7, 10].

In the other motion pending before the Court, which is presumably a response to the Court’s

Castro notice, Petitioner reiterates his right to relief under § 2241. [See Doc. 10], In this motion,

Petitioner provides a lengthy recitation of his version of the procedural and factual history of his

criminal case. [See id. at 1-2], Petitioner reiterates arguments previously rejected in his original

motion to vacate regarding an entrapment defense, prosecutorial misconduct, and ineffective

assistance of counsel. [Id at 4], Petitioner also argues he is actually innocent 21 U.S.C. § 851 “to

being in possession of cocaine or sell cocaine.” [Id.].

The pending motions are nothing more than successive motions to vacate under § 2255.

Pursuant to 28 U.S.C. § 2244(b)(3)(A), “[b]efore a second or successive application permitted by

this section is filed in the district court, the applicant shall move in the appropriate court of appeals

for an order authorizing the district court to consider the application.” Thus, Petitioner must first

obtain an order from the United States Court of Appeals for the Fourth Circuit before this Court

will consider any second or successive petition under 28 U.S.C. § 2255. Petitioner has not shown

that he has obtained the permission of the United States Court of Appeals for the Fourth Circuit to

file a successive petition. See also 28 U.S.C. § 2255(h) (stating that “[a] second or successive

motion must be certified as provided in section 2244 by a panel of the appropriate court of

appeals”). Accordingly, these successive petitions must be dismissed. See Burton v. Stewart, 549

3 In response to Petitioner’s motion, the Court errantly notified Petitioner under United States v. Castro,

540 U.S. 375 (2003), that the Court intended to consider his motion as a motion to vacate, set aside or

correct sentence pursuant to 28 U.S.C. § 2255 and requested that Petitioner agree or disagree with that

characterization. This Castro notice was unnecessary because Petitioner had already previously filed a §

2255 motion, which was dismissed on the merits. [Case No. 3:16-cv-40, Docs. 1, 5]. After having been

granted several extensions of time to reply to the Castro notice [Docs. 5, 7, 9], Petitioner filed the other

motion pending before the Court [Doe. 10].

Case 3:19-cv-00441-FDW Document 11 Filed 03/23/20 Page 3 of 4

U.S. 147, 153 (2007) (holding that failure of petitioner to obtain authorization to file a “second or

successive” petition deprived the district court ofjurisdiction to consider the second or successive

petition “in the first place”).

For the foregoing reasons, the Court will dismiss Petitioner’s pending motions for lack of

jurisdiction because the motions are successive petitions and Petitioner has not first obtained

permission from the Fourth Circuit Court of Appeals to file another motion pursuant to § 2255.

IT IS, THEREFORE, ORDERED that

Petitioner’s motions [Docs. 1,10] are DISMISSED as successive petitions.

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). Petitioner has failed to make the required showing.

IT IS SO ORDERED.

Signed: March 23, 2020

Frank D. Whitney

Chief United States District Judge

Case 3:19-cv-00441-FDW Document 11 Filed 03/23/20 Page 4 of 4

FILED: December 21, 2020

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-6765

(3:19-cv-00441-FD W)

ZONTA TAVARUS ELLISON

Petitioner - Appellant

UNITED STATES OF AMERICA

Respondent - Appellee

ORDER

The court strictly enforces the time limits for filing petitions for rehearing

and petitions for rehearing en banc in accordance with Local Rule 40(c). The

petition in this case is denied as untimely.

For the Court—By Direction

/s/ Patricia S. Connor, Clerk

App/sudixA

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

March 25, 2019

Scott S. Harris

Clerk of the Court

(202) 479-3011

Mr. Zonta Tavarus Ellison

Prisoner ID F.C.I. - Fort Dix

# 27066-058

P.O. Box 2000

Fort Dix, NJ 08640

Re: Zonta Tavarus Ellison

v. United States

No. 18-7881

Dear Mr. Ellison:

The Oourt today entered the following order in the above-entitled case:

The petition for a writ of certiorari is denied.

Sincerely,

Scott S. Harris, Clerk

kppZhld'iK 0

UNPUBLISHED

UNITED STATES COURT OF APPEALS;

FOR THE FOURTH CIRCUIT

No. 18-6342

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ZONTA TAVARUS ELLISON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina,

at Charlotte. Frank D. Whitney, Chief District Judge. (3:1 l-cr-00404-FDW-DSC-l;

3:16-CV-00040-FDW)

Decided: July 24, 2018

Submitted: July 19, 2018

Before WILKINSON, MOTZ, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Zonta Tavarus Ellison, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

APPSHblX kf

PER CURIAM:

Zonta Tavarus Ellison seeks to appeal the district court’s order denying his motion

for relief under Fed. R. Civ. P. 60(b)(6) and Fed. R. Civ. P. 10(c), in which he sought

relief from this court’s judgment dismissing his appeal of the district court’s order

denying his 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit

justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A

certificate of appealability will not issue absent “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies

relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable

jurists would find that the district court’s assessment of the constitutional claims is

debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.

Cockrell, 537 U.S. 322, 336-38 (2003).

When the district court denies relief on

procedural grounds, the prisoner must demonstrate both that the dispositive procedural

ruling is debatable, and that the motion states a debatable claim of the denial of a

constitutional right. Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude that Ellison has not

made the requisite showing. Accordingly, we deny a certificate of appealability and

dismiss the appeal.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

DISMISSED

' r"T. ’• 'V •

Bttftg,k*.

ZONTATAVARUS ELLISON, Petitioner, vs. UNITED STATES OF AMERICA, Respondent.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA,

CHARLOTTE DIVISION

2016 U.S. Dist. LEXIS 56038

3:16-cv-40-FDW,(3:11-cr-404-FDW-DSC-1)

April 27, 2013, Filed

Editorial Information: Subsequent History

Appeal dismissed by, Certificate of appealability denied United States v. Ellison, 669 Fed. Appx. 692,

2016 U.S. App. LEXIS 18901 (4th Cir. N.C., Oct. 20, 2016)Appeal dismissed by, Certificate of

appealability denied United States v. Ellison, 2018 U.S. App. LEXIS 20556 (4th Cir. N.C., July 24, 2018)

Editorial Information: Prior History

Ellison v. United States. 2013 U.S. Dist. LEXIS 83270 (W.D.N.C., June 13, 2013)

{2016 U.S. Dist. LEXIS 1}Zonta Tavarus Ellison, Petitioner

(3:16-cv-00040-FDW), Pro se, BENNETTSVILLE, SC.

For USA, Respondent (3:16-cv-00040-FDW): Elizabeth

Margaret Greenough, LEAD ATTORNEY, U.S. Attorney's Office, Charlotte, NC.

For USA, Plaintiff (3:11-cr-00404-FDW-DSC-1): Cortney S.

Randall, LEAD ATTORNEY, US Attorneys Office, Charlotte, NC; Kimlani Murray Ford,

LEAD ATTORNEY, Maria Kathleen Vento, U.S. Attorneys Office, Charlotte, NC.

Judges: Frank D. Whitney, Chief United States District Judge.

Counsel

Opinion

Opinion by:

Frank D. Whitney

Opinion

ORDER

THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence

under 28 U.S.C. § 2255. (Doc. No. 1). Also pending before the Court is Petitioner's "Pro Se Motion to

Dismiss Indictment in Response to United States Lack of Response to Pro Se Motion to Vacate."

(Doc. No. 4).

I. BACKGROUND

A. Petitioner sells crack cocaine to an undercover officer on three occasions.

In June 2011, an undercover officer bought crack cocaine from Petitioner Zonta Tavarus Ellison on

three separate occasions. (Crim. Case No. 3:11-cr-404-FDW-DSC-1, Doc. No. 67 at 110: Trial Tr. I).

Each of the transactions was recorded by audio or video. (Id. at 113; 128; 149). On June 15, 2011,

Petitioner sold the undercover officer 3.5 aramsf2016 U.S. Dist. LEXIS 2} of crack cocaine for $180

in the driveway of Petitioner's mother's house in Charlotte, North Carolina. (Id. at 111). During the

transaction, Petitioner boasted that he had three "trap spots" or drug houses located throughout

Charlotte. (Id. at 118).

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

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27066058

Less than two weeks later, Petitioner spoke with the undercover officer via telephone to arrange a

second

drug transaction, (id,, at 124-27). During the conversation, Petitioner agreed to sell the

undercover officer seven grams of crack cocaine for $350. (Jd at 127). The second exchange took

place in the parking lot of a V\/endy's restaurant in Charlotte, (id. at 132; 134). After the transaction,

Petitioner discussed the possibility of future drug transactions, involving large quantities of crack

cocaine, (id. at 134). Petitioner also stated that he was "trying to get [his] hands on some dog food,"

which, according to the undercover officer, is a street term for heroin. (Jd at 134-36).

Days later, Petitioner met with the undercover officer for a third transaction, (id at 141). Before the

meeting, Petitioner agreed to sell the undercover officer 14 grams.of crack cocaine for $700. (id. at

141-45). Once again, Petitioner met the officer at the Wendy's restaurant for the transaction, (id. at

145). After Petitioner entered the undercover officer's car{2016 U.S. Dist. LEXIS 3} and passed him

the crack cocaine, the officer weighed the drugs using a digital scale. (Jd at 150-51). When the

undercover officer told Petitioner that the drugs were light, meaning they weighed less than the

agreed-upon amount, Petitioner returned to his car to retrieve additional crack cocaine, which he

then gave to the undercover officer, (id at 151-52). After confirming the weight, the officer paid

Petitioner $700. (id at 152; 154).

Petitioner was subsequently arrested and charged on December 13, 2011, with three counts of

possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).

(Id.. Doc. No. 1: Indictment). Attorney Emily Marroquin was appointed to represent Petitioner, but

Petitioner later hired attorney Marcos Roberts to represent him. (id, Doc. No. 8: Entry Jan. 17,

2012). On February 2, 2012, the Government filed an information pursuant to 21 U.S.C. § 851,

seeking enhanced penalties based on Petitioner's prior 2010 North Carolina state conviction for

selling cocaine, (id, Doc. No. 7: Notice of Prior Conviction).

. i

B. Petitioner complains of not receiving discovery, but refuses to review the discovery

provided by his attorney.

At an inquiry of status hearing in August 2012, Petitioner expressed frustration{2016 U.S. Dist.

LEXIS 4} with his attorney regarding disclosure of discovery. (]d, Doc. No. 63 at 8-11: Status of

Counsel Hrg. Tr.). The Court explained the Government's open file discovery policy, which prohibits

defendants from retaining copies of documents while incarcerated. (Jd at 8-10). Petitioner's attorney •*

Roberts stated that he had discussed the discovery with Petitioner and had brought the entire file to i

the jail, but that Petitioner was interested in information that was not relevant to the substance of the

charges. (Jd at 11-14; 18). The hearing was continued to allow Petitioner and Roberts to speak

privately, (jd. at 21).

At the continuation of the hearing, Roberts told the Court that he sent a paralegal with the entire

discovery binder to visit Petitioner and to allow him to look through the discovery page-by-page, (id,

Doc. No. 64 at 5-6: Status of Counsel Hrg. Tr.). Petitioner did not believe that it was all of the

discovery and refused to look at it. (Jd at 6). Roberts then went to the jail to meet with Petitioner

personally and to show him the discovery. (Jd). Petitioner again refused to look at it, claiming that it

was not all of the discovery. (Id). Petitioner stated that he did not want Roberts to continue to

represent{2016 U.S. Dist. LEXIS 5} him, and the Court allowed Roberts to withdraw. (Jd. at 7-8).

Attorney Steven T. Meier was then appointed to represent Petitioner. (Jd, Doc. No. 18). At the end of

November 2012, the Court held another inquiry of counsel hearing based on Petitioner's desire for

Meier to file motions that Meier believed were frivolous. (Jd, Doc. No. 20: Motion for Inquiry of

Counsel; Doc. No. 65: Status of Counsel Hrg. Tr.). The Court ordered Meier to continue as counsel.

(Id., Doc. No. 65 at 8).

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

27066058

C. Petitioner chooses to proceed pro se at trial.

On the first day of trial, Petitioner stated that he wanted to proceed pro se, with Meier serving as

standby counsel. (Id., Doc. No. 67 at 5: Trial Tr. I). The Court explained Petitioner's right to

self-representation, as well as the requirement that he invoke that right clearly and unequivocally,

knowingly and intelligently, and in a timely manner. (Id. at 7-13). Petitioner stated that he was ready

to represent himself and that he was ready for trial, (id. at 13-14). Petitioner again complained about

discovery, and the Court explained to Petitioner that he was not allowed to have hard copies of

discovery while in jail, (id at 14-18; 21-29). The Government outlined the evidence that it intended to

present,{2016 U.S. Dist. LEXIS 6} and Petitioner reiterated that he was "positively, absolutely

certain" that he wanted to represent himself, (id at 23-25; 29). The Court granted the motion, finding

that Petitioner's assertion of his right to represent himself was clear and unequivocal and that it was

^ made knowingly, intelligently, and voluntarily, (id at 29). The Court also found that the motion was

h**" timely in that it was made before jury selection, (id. at 30). Petitioner again was given access to the

discovery, (id. at 35).

At trial, the undercover officer, Charlie Davis, testified that he purchased crack cocaine from

Petitioner on three separate occasions during June 2011. (id at 110-12; 132; 151-52). The audio or

video evidence showing these transactions was also admitted. (Id. at 113; 128; 149). Petitioner took

the stand and admitted to selling crack cocaine to the undercover officer on the three dates charged

in the indictment, (id, Doc. No. 68 at 136-37: Trial Tr. II). He also admitted that he had three prior

convictions for possession of cocaine, as well as one conviction for selling cocaine, one conviction

for possession with intent to distribute marijuana, and one conviction for possession of Ecstasy, (id.

at 135-36).

^Petitioner tried to elicit the identity of the confidential{2016 U.S. Dist. LEXIS 7} informant (Cl) who

•■yhad-pnrri-^gpH marijuana from him in March 2011, months before the cocaine offenses with which

he was charged, but the Court instructed him that this-was-noLtO-become. public-information. (Id.,

^.Doc. No. 67 at 157-58: Trial Tr. I). Petitioner then insisted, over the Government's objection, on

introducing evidence of the Cl's purchase of marijuana from him. (Jd at 162-76; 179). He later

jk. argued that because the Government used a Cl to effect an undercover purchase of marijuana, he

should be allowed to cross-examine the Cl. (jd, Doc. No. 68 at 11-12: Trial Tr. II). The Court

reminded Petitioner that he had introduced the document that indicated that he had purchased

marijuana from a Cl and that this did not create a right for him to cross-examine the Cl because the * •

Government had not called the Cl as a witness and that transaction had nothing to do with the three

cocaine charges at issue in the trial, (jd. at 12-14). The Court did not order disclosure of the name of

the Cl because Petitioner had not shown an actual need for this information. (Id at 22-23). The Court

also noted that the exhibit evidencing this prior transaction showed that Petitioner was not an

otherwise innocent party because he had the{2016 U.S. Dist. LEXIS 8} predisposition to be a drug

trafficker, (jd. at 14-15).

Petitioner tried to argue that he was entrapped into committing the cocaine offenses. When pressed

as to what evidence he had of entrapment, he stated that he wanted to subpoena the Cl to determine

^ where the Cl had received his information from, (jd at 17-18). He then indicated that he knew the

identity of the officer whom he believed had contacted the Cl or started the investigation, and the

Court agreed that he could subpoena the officer to determine whether he had done anything

improper in commencing the investigation, (jd, at 18; 20-21). The Government stated that Petitioner

had previously filed a complaint against this officer, Jonathan Frisk, (jd at 18).

Petitioner attempted to offer as a defense that Frisk had a vendetta against him. (]d at 89).

Petitioner called Frisk to testify and introduced evidence of a 2007 incident in which Frisk attempted

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

27066058

to speak with Petitioner regarding a probation violation warrant, but Petitioner fled before he

eventually was arrested, (id. at 74-75; 77). A different officer found crack cocaine in the patrol car

where Petitioner had been sitting, after observing Petitioner stuff something under the seat. (]d at

75; 77). As a result of this incident. Pelitiojnerf2016 U.S. Dist. LEXIS 91 pleaded guilty to possessing

also found that the Government had presented evidence of Petitioner’s own predisposition to commit

the offenses. (kL at 181-83). The jury convicted Petitioner of all counts, (id. at 225-26).

The probation officer issued a PSR, recommending that Petitioner be sentenced as a career offender

If in light of his prior convictions for robbery with a dangerous weapon and selling cocaine, (id., Doc.

No. 44 at If 20: PSR). This resulted in a total offense of 34, a criminal history category of VI, and an

advisory guidelines range of 262-327 months of imprisonment. (Id.

hot be used against him because it was the result of an Alford plea and, thus, he had not admittedio

committing this offense. (Id.. Doc. No. 59 at 14-28: Sent. Tr.). Ibis. Court overruled hisjobj.eclio.n_and

imposed-a sentence of 262 months of imprisonment, specifically finding that it would impose the

Jfe samR sentencel2016 U.S. Dist. LEXIS fO}as-an upward variance even if.the_car.eeLoffender

enhancement did not aoplv. (Id. at 27-28; 48-50).

D. The Fourth Circuit affirms Petitioner's conviction and sentence.

Petitioner appealed, arguing that he had not knowingly waived his right to counsel arid that he should

have received a two-level reduction for acceptance of responsibility even though he proceeded to

trial. United States v. Ellison. 588 F. App'x 266, 266 (4th Cir. 2014), cert, denied. 135 S. Ct. 2873, .

192 L. Ed. 2d 907 (2015). The Fourth Circuit affirmed, holding that Petitioner had unequivocally

asserted his right to self-representation and that his election to proceed pro se was made knowingly,

intelligently, and voluntarily. 1 kl at 267.

On February 14, 2013, Petitioner filed a 28 U.S.C. § 2254 application in this Court, attempting to

challenge the state court conviction charged in the § 851 notice before it was used to enhance his

sentence in this case. Ellison v. United States. No. 3:13cv94, 2013 WL 1190296 (W.D.N.C. Mar. _

22, 2013) (unpublished). This Court dismissed the application without prejudice. Id. Petitioner timely

filed the present motion to vacate on January 21, 2016. Petitioner raises five claims in his motion;. (1 ){2016 U.S. Dist. LEXIS 11} prosecutorial misconduct; (2) denial of his ability to present an

> entrapment defense; (3) ineffective assistance of counsel; (4) use of an invalid prior conviction to

enhance his sentence; and (5) violation of double jeopardy. (Doc. No. 1 at 4-6). The Government

filed a response on April 21., 2016. On April 26, 2016, Petitioner filed a "Pro Se Motion to Dismiss

Indictment in Response to United States Lack of Response to Pro Se Motion to Vacate," in which

Petitioner contends incorrectly that the Government did not file a response, and he therefore argues

for dismissal of the original indictment against him.

II. STANDARD OF REVIEW

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).

III. DISCUSSION

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

27066058

, i

;

A. Petitioner's entrapment, prior conviction, and double jeopardy claims.

First, as to Petitioner's entrapment,{2016 U.S. Dist. LEXIS 12} prior conviction, and double jeopardy

claims, the Government argues that Petitioner did not raise these claims on direct appeal, and they

are therefore procedurally defaulted.2 The Court agrees. A § 2255 motion is not a substitute for a

direct appeal. See United States v. Fradv. 456 U.S- 152, 165, 102 S. Ct. 1584, 71 L. Ed. 2d 816

(1982). Claims of error that could have been raised on direct appeal, but were not, are procedurally

barred unless the petitioner shows both cause for the default and actual prejudice, or demonstrates

that he is actually innocent of the offense. See Bouslev v. United States. 523 U.S. 614, 621-22, 118

S. Ct. 1604, 140 L. Ed. 2d 828 (1998); United States v. Bowman. 267 F. App’x 296, 299 (4th Cir.

2008). "[Cjause for a procedural default must turn on something external to the defense, such as the

novelty of the claim or a denial of effective assistance of counsel." United States v. Mikalaiunas. 186

F.3d 490, 493 (4th Cir. 1999). To show actual prejudice, a petitioner must demonstrate that errors in

the proceedings "worked to his actual and substantial disadvantage" and were of constitutional

dimension. See Fradv. 456 U.S. at 170. To show actual innocence, a petitioner must demonstrate

that he "has been incarcerated for a crime he did not commit." United States v. Jones. 758 F.3d 579,

584 (4th Cir. 2014), cert, denied. 135 S. Ct. 1467, 191 L. Ed. 2d 413 (2015). Actual innocence is

based on factual innocence and "is not satisfied by a showing that a petitioner is legally, but not

factually, innocent." See Mikalaiunas. 186 F.3d at 494.

Petitioner argues that he was unable to present an entrapment defense, that the prior North Carolina

conviction used to enhance his sentence was invalid, and that the Government violated the Double

Jeopardy Clause by charging him for conduct that the state had dismissed. (Doc. No. 1 at 4-6).

Petitioner did not raise these issues on direct appeal. See Ellison. 588 F. App'x at 266. BecausePetitioner has not alleged cause or prejudice for this failure, these claims are procedurally barred.

Although Petitioner does not specifically argue actual innocence to overcome the procedural bar,even if his assertion that he was entrapped to commit the three cocaine transactions could be read to

raise this issue, it does not show that he was factually innocent of the crime. He conceded at trial that

he sold crack cocaine to the undercover officer on three occasions. (Crim. Case No.

3:11-cr-404-FDW-DSC-1, Doc. No. 68 at 136-37: Trial Tr. II). Additionally, as this Court determined,

Petitioner{2016 U.S. Dist. LEXIS 14} failed to show that the Government had induced the offenses;

rather, the Court found that the Government had shown that he had a predisposition to. commit them.

(Id. at 181-83). Accordingly, any attempt to show factual innocence would be futile.

Because Petitioner has not shown cause, prejudice, or actual innocence, he cannot overcome the

vk procedural bar for his failure to raise these claims on direct appeal. Therefore, these claims are

^ dismissed. See Bouslev. 523 U.S. at 621-22. Furthermore, for the following reasons, even if these

claims could be considered, they are without merit.

1. Petitioner's contention that he was entitled to an entrapment instruction.

Entrapment is an affirmative defense that a defendant may invoke when he can show that the

off government induced the crime and that he did not have a predisposition to engage in criminal

conduct. Mathews v. United States. 485 U.S. 58, 62-63, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988). Ja

show inrinnftmftnt a defendant must show "governmental overreaching and conduct sufficiently

pycprsIvp tn implant a r.rimjnai Hpsign in thp mind of an otherwise innocent party." United States V.

Daniel. 3 F.3d 775, 778 (4th Cir. 1993). The government's behavior must be "so inducive to a

reasonably firm person as likely to displace mens rea." United States v. DeVore. 423 F.2d 1069,

1072 (4th Cir. 1970). Inducement requires more than mere solicitation by the government. United

. Dist. LEXIS 15}

States v. Hsu. 364 F.3d 192,

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insufficient to^show-inriucement. United States v. Wright, 333 F. App'x 772, 776 (4th Cir. 2009).

Petitioner argues that he was prevented from presenting an entrapment defense because he was not

allowed to subpoena a witness critical to this defense. (Doc. No. 1 at 4). Although he does not

specifically identify the witness, this appears to be a reference to the Cl from the March 2011 drug

sale. (Id.). This allegation is dismissed as conclusory. See United States v. Dvess. 730 F.3d 354,

359-60 (4th Cir. 2013) (holding it was proper to dismiss § 2255 claims based on vague and

conclusory allegations), cert, denied. 135 S. Ct. 47, 190 L. Ed. 2d 52 (2014). The testimony of the Cl

from the March 2011 marijuana transaction was not relevant to the three cocaine charges Petitioner

faced, where these three transactions occurred months later and were conducted by a different

ilv person. Additionally, Petitioner has not alleged or shown government inducement or lack of

predisposition on his part. Rather, as this Court found, the evidence presented at trial showed that he

had the predisposition to commit the charged offenses. See (Crim. Case No.

3:11-cr-404-FDW-DSC-1, Doc. No. 68 at 14-15; 181-83: Trial Tr. II). Accordingly, his assertion that

he was prevented from presenting{2016 U.S. Dist. LEXIS 16} an entrapment defense lacks merit.

2. Petitioner's challenge to his prior state conviction.

Unless a prior state conviction has been set aside, a defendant is generally barred from challenging

on post-conviction review the validity of a prior state conviction used to enhance his federal

sentence. See Daniels v. United States. 532 U.S. 374, 376, 121 S. Ct. 1578, 149 L. Ed. 2d 590

(2001). Although there is an exception for prior convictions obtained in violation of the right to

counsel, this defect must have been raised during the federal sentencing hearing, jd. at 382.

Al. Petitioner argues that the prior North Carolina conviction for selling cocaine that was used to

enhance his sentence was invalid since he was forced to sign an Alford plea to be released for time

served. (Doc. No. 1 at 4; 6). However, he has presented no evidence to show that this prior

conviction has been invalidated; Accordingly, "[t]he presumption of validity that attached to the prior

conviction at the time of sentencing is conclusive." See Daniels, 532 U.S. at 382. Moreover, the

Fourth Circuit has recognized the validity of using prior convictions obtained pursuant to Alford pleas

in sentencing a defendant. See United States v. Kina. 673 F.3d 274, 282-83 (4th Cir. 2012) (holding

Alford plea qualified as a prior conviction under the Guidelines); United States v. Guzman-Alvarado.

457 F. App'x 296, 298 (4th Cir. 2011) (affirming Armed Career Criminal Act enhancement

jk based{2016 U.S. Dist. LEXIS 17} on prior Alford plea). Finally, this Court stated at sentencing that it

would impose the same sentence even if the guidelines range had not been increased based on this

prior conviction. (Crim. Case No. 3:11-cr-404-FDW-DSC-1, Doc. No. 59 at 48-50: Sent. Tr.).

Therefore, Petitioner's challenge to his prior state conviction is without merit.

3. Petitioner's double jeopardy claim.

A defendant commits two distinct offenses when he commits a single act that violates the laws of two

^ different sovereigns. See Heath v. Alabama. 474 U.S. 82, 106 S. Ct. 433, 88 L. Ed. 2d 387 (1985).

The Double Jeopardy Clause "does not bar successive prosecutions by different sovereigns." Lynn v.

West. 134 F.3d 582, 593 (4th Cir. 1998); see United States v. Neal. No. 3:09cr17, 2010 U.S. Dist.

LEXIS 11811,2010 WL 339018, at *2 (W.D.N.C. Jan. 22, 2010) (unpublished) (holding that "the

dismissal of state charges has no impact on the ability of the federal government to prosecute based

on the same conduct").

Petitioner argues that his double jeopardy rights were violated when the Government charged him

for the same conduct for which the state of North Carolina had charged him. (Doc. No. 1 at 6). He

^ concedes that the state charges were dismissed before the federal charges were brought. (Id.).

Because the prior charges were brought by the state of North Caroljna, prosecution of Petitioner

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under federal law is not a double jeopardy{2016 U.S. Dist. LEXIS 18} violation. See Lvnn. 134 F.3d

at 593. Accordingly, this claim is without merit.

B. Petitioner's claim of prosecutorial misconduct.

In support of his claim for prosecutorial misconduct, Petitioner argues that the Government used a

paid informant to purchase marijuana from him and to persuade him to sell crack cocaine. (Doc. No.

1 at 4). He contends that when he attempted to subpoena the informant to establish a defense of

entrapment, the Government withheld "this evidence." (Jd. at 6). He asserts that his motions to

compel production of this witness were denied. (Jd. at 4; 6).

ulf

To establish prosecutorial misconduct, a defendant must demonstrate: (1) that the conduct of the

prosecutor was improper, and (2) that the improper conduct prejudicially affected his substantial

rights so as to deprive him of a fair trial. See United States v. Mitchell. 1 F.3d 235, 240 (4th Cir.

ik. 19931. Under Brady v. Maryland. 373 U.S. 83.

I,,the.

^ Government is required to disclose favorable evidence_tha:Us_material to guilt or punishment.

. Here, the

evidence that Petitioner sought was not material to his guilt or punishment on_the cocaine charges.

As this Court determined when Petitioner requested this information, it was not necessary for the

Government tof2016 U.S. Dist. LEXIS 19} identify the Cl involved in the March 2011 drug

was not related to the charges pending_aaainst Petitioner. (Crim.

Case No. 3:11-cr-404-FDW-DSC-1, Doc. No. 67 at 157-58: Trial Tr. I; Doc. No. 68 at 22-23: Trial Tr.

•))£• II). Because the Cl was not relevant, there was no need to subpoena the Cl as a witness.

_ Furthermore, Petitioner cannot show any prejudice because the March and June incidents were

unrelated, and, rather than showing improper enticement of Petitioner, the prior incident confirmed

Petitioner's predisposition to sell drugs. See (Id.. Doc. No. 68 at 14-15; 181-83: Trial Tr. II). In sum,

Petitioner's claim of prosecutorial misconduct is denied because he cannot show that the

^ Government improperly withheld the identity of a Cl from an unrelated drug transaction, or that the

failure to disclose this information deprived him of a fair trial.

C. Petitioner's claim of ineffective assistance of counsel.

ds 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{2016 U.S. Dist. LEXIS 20} the deficient performance prejudiced him. See

Strickland v. Washington. 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In making

this determination, there is "a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Jd at 689; see also United States v. Luck. 611 F.3d 183, 186

(4th Cir. 2010). Etirthacmore. in considering the prejudice prong of the analysis, the Court "can only

Sfrjpl<;|anH JfJhP! 'result nf the prnrpftdinq was fundamentally unfair or

Tlf- grant relief under

unreliable.'" Sexton v. French. 163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v. Fretwell. 506

U.S. 364, 369, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993)). Under these circumstances, the petitioner

^ "bears the burden of affirmatively proving prejudice." Bowie v. Branker. 512 F.3d 112,120 (4th Cir.

2008). If the petitioner fails to meet this burden, a "reviewing court need not even consider the

performance prong." United States v. Rhynes. 196 F.3d 207, 232 (4th Cir. 1999), opinion vacated on

other grounds. 218 F.3d 310 (4th Cir. 2000).

In support of his claim for ineffective assistance of counsel, Petitioner asserts that his attorney

withheld discovery until the first day of trial and then abandoned him. (Doc. No. 1 at 4). He contends

that he was forced into trial unprepared and that the Court did not conduct a Ferreta hearing. (Jd. at

6). He also contends that his appellate attorney provided ineffective assistance by refusing to

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provide "discovery" to him that would have proven that the transcripts of the proceedings were

fabricated. (Id.). The Fourth Circuit held{2016 U.S. Dist. LEXIS 21} on appeal that Petitioner

knowingly and voluntarily decided to proceed pro se at trial. Ellison. 588 F. App'x at 267. Petitioner

may not challenge this determination on collateral review. See Boeckenhaupt v. United States. 537

F.2d 1182, 1183 (4th Cir. 1976) (claims considered on direct review may not be recast "under the

guise of collateral attack"). Therefore, Petitioner's assertion that his attorney abandoned him is

without merit as Petitioner made his own decision to proceed pro se.

inquiry of status hearings shows that both a paralegal and Petitioner's attorney attempted to show

him the entire discovery file while he was incarcerated, but Petitioner refused to view it. (Crim. Case

No. 3:11-cr-404-FDW-DSC-1, Doc. No. 63 at 11-14, 18; Doc. No. 64 at 5-6). Petitioner's attorney

also discussed the discovery with him. (Id.. Doc. No. 63 at 11-14; 18). Petitioner cannot show

deficient performance by counsel where Petitioner refused to view the discovery that was provided to

him. Nor can he show prejudice, because he does not allege that there is a reasonable probability

that he would not have been convicted had he been provided with discovery earlier before trial. See

Strickland. 466 U.S. at 694.

Finally, Petitioner's{2016 U.S. Dist. LEXIS 22} assertion that his appellate attorney failed to provide

"discovery" to him that would have proven that the transcripts of the proceedings were fabricated,

will be dismissed as speculative and conclusory, see Dvess. 730 F.3d at 359-60, and because

Petitioner has failed to show prejudice. Petitioner does not allege what evidence existed that might

have shown that the transcripts were fabricated, how such evidence would have presented a stronger

* issue to raise on appeal, or that there is a reasonable probability that_he_w.<

appeal had counsel shown him such "discovery." See Smith v. Robbins. 528 U.S. 259, 285-86, 288,

120 S. Ct. 746, 145 L. Ed. 2d 756 (2000) (holding that a petitioner alleging ineffective assistance of

appellate counsel still bears the burden to show prejudice).

In sum, because Petitioner cannot show deficient performance or prejudice by trial or appellate

counsel, his ineffective assistance claims are denied.

IV. CONCLUSION

For the foregoing reasons, the Court denies and dismisses Petitioner's § 2255 petition.

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 DENIED and DISMISSED. To this extent, Petitioner's "Pro Se Motion to Dismiss

Indictment in Response to United States Lack of Response to Pro{2016 U.S. Dist. LEXIS 23} Se

Motion to Vacate," (Doc. No. 4), in which Petitioner contends incorrectly that the Government did

not file a response, is 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, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (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, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (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).

Isl Frank D. Whitney

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Frank D. Whitney

Chief United States District Judge

Footnotes

Although Petitioner attempted to file a pro se brief raising additional issues, the Fourth Circuit issued

its decision before he did so. See (No. 14-4197, Doc. No. 78 (4th Cir.)).

Petitioner also did not raise his claim for prosecutorial misconduct on direct{2016 U.S. Dist. LEXIS

13} appeal, but the Government did not raise procedural default as a defense to this fourth claim.

Rather, the Government contends in its response only that the prosecutorial misconduct claim fails

on the merits, and the Court agrees for the reasons stated herein.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.