United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGER UNITED STATES DISTRICT JUDGE
Court has reviewed the Petitioner's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody (Document 75), brought on
the grounds, inter alia, that his counsel was
ineffective, that he was improperly sentenced as a career
offender, and that he should have been permitted to withdraw
his guilty plea. The Court has also reviewed the
Petitioner's Memorandum in Support of Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.
§ 2255 (Document 76), the Response of the
United States to Movant Rhinelander Hernandez's Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (Document 80),
and the Reply of the Movant to the United States'
Response to the Movant's Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (Document 86). For the reasons stated
herein, the Court finds that the Petitioner's motion
should be denied.
BACKGROUND AND PROCEDURAL HISTORY
Petitioner, Rhinelander Hernandez, was indicted on February
24, 2015, on charges of distribution of cocaine and
distribution of heroin. On May 13, 2015, the United States
filed an Information pursuant to 21 U.S.C. § 851,
alleging that Mr. Hernandez was subject to enhanced penalties
due to a prior felony drug conviction. On May 28, 2015, Mr.
Hernandez's original attorney, an Assistant Federal
Public Defender, sought to withdraw, and the Magistrate Judge
appointed Stephen O. Callaghan, a member of the CJA panel.
Hernandez entered into a plea agreement with the United
States, wherein he agreed to plead guilty to Count Two of the
Indictment, or the distribution of heroin. The United States
agreed to dismiss Count One and the § 851 Information.
During a plea hearing held on August 18, 2015, Mr. Hernandez
indicated that he was satisfied with his counsel and stated
the factual basis of his plea. He explained that he sold one
or two stamps of heroin to a “[a] guy named
Tattoo” on December 2, 2014 at a Go-Mart in Beckley,
West Virginia, after arranging the transaction on the
internet. (Plea Tr. at 12:4-13:7) (Document 58.) The Court
explained the maximum potential penalties and advised Mr.
Hernandez that the United States' agreement to dismiss
the § 851 Information would have no bearing on whether a
career offender enhancement would apply under the Guidelines.
Mr. Hernandez stated that he understood the potential
penalties. He also assured the Court that he understood the
terms of the appellate waiver contained in his plea
agreement, including his agreement to waive the right to
appeal any sentence that did not exceed the statutory
Hernandez appeared for his scheduled sentencing hearing on
December 2, 2015. At the beginning of the hearing, Mr.
Callaghan informed the Court that Mr. Hernandez had requested
a continuance, wanted to withdraw his plea, and requested new
counsel. Mr. Callaghan described, in general terms, his
interactions with his client, including discussions prior to
both the plea and the sentencing. Mr. Hernandez indicated
that he wished to withdraw his plea and be appointed new
counsel because he believed he could not have been convicted
of the charge to which he pled guilty. The Court found no
legitimate legal basis to support a continuance, withdrawal
of the guilty plea, or appointment of new counsel under the
applicable legal standard for each issue.
Hernandez, by counsel, objected to the use of a state
conviction for conspiracy to commit a felony as a predicate
controlled substance offense for purposes of the career
offender provision of the Guidelines. The Court overruled the
objection, finding the state statute divisible and concluding
that it was appropriate to consider the felony the defendant
was convicted of conspiring to commit-here, delivery of a
Schedule II narcotic controlled substance. Because of his
career offender status, Mr. Hernandez's Guideline
sentencing range was 151-188 months. The Court varied
downward to impose a sentence of 120 months.
Hernandez filed a direct appeal. The Fourth Circuit appointed
attorney John Hampton Tinney, Jr., to represent him on
appeal. Mr. Tinney filed an Anders brief, suggesting
that application of the career offender provision may have
been in error. Mr. Hernandez filed a pro-se brief,
similarly arguing that he should not have been sentenced as a
career offender and that his attorney was ineffective. On
August 12, 2016, the Fourth Circuit dismissed Mr.
Hernandez's appeal in an unpublished opinion, concluding
that the appellate waiver in Mr. Hernandez's plea
agreement precluded consideration of the career offender
enhancement. The Fourth Circuit further found that no
ineffective assistance of counsel was apparent from the
record, and that issue could be more fully explored in a
§ 2255 petition.
Hernandez brought his motion pursuant to 28 U.S.C. §
2255 on May 22, 2017. The Magistrate Judge directed the
United States to file an answer, and the United States'
answer to the motion was filed on October 24, 2017. The
motion is fully briefed and ripe for ruling.
pursuant to 28 U.S.C. § 2255 permit federal prisoners to
challenge their convictions or sentences, usually within one
year after the judgment becomes final. “A prisoner in
custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground
that the sentence was imposed in violation of the
Constitution or 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). The petitioner
bears the burden of proving, by a preponderance of evidence,
that he is entitled to relief under §2255. Miller v.
United States, 261 F.2d 546, 547 (4th Cir. 1958).
However, “a criminal defendant may waive his right to
attack his conviction and sentence collaterally, so long as
the waiver is knowing and voluntary.” United States
v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). Where
the motion, files, and records in the case
“conclusively show that the prisoner is entitled to no
relief, ” no hearing is required. 28 U.S.C. §
Hernandez asserts that he is innocent of selling heroin to
the confidential informant as alleged in the count of
conviction. He states that he informed Mr. Callaghan of his
innocence and sought to review a video of the transaction
produced in discovery with Mr. Callaghan, but Mr. Callaghan
insisted that the video clearly showed a drug transaction and
advised him to plead guilty. He states that he pled guilty
only because his attorney was unwilling to assist him in
proving his innocence. Mr. Hernandez contends that his
appellate attorney failed to review the discovery materials
that showed that he had not distributed the heroin. Mr.
Hernandez further asserts that his sentence as a career
offender was the result of his counsel's ineffective
representation. Finally, he argues that he had the right to
withdraw his guilty plea because the Court deferred
acceptance of his plea agreement pending review of the
presentence investigation report.
response, the United States points to the plea colloquy,
wherein Mr. Hernandez set forth a factual basis for his plea,
as well as assuring the Court that he was competent to plead
guilty and was doing so knowingly and intelligently. The
United States contends that the appellate waiver bars further
argument or consideration related to Mr. Hernandez's
career offender designation or the denial of his motion to
withdraw his guilty plea. After summarizing the record,
particularly Mr. Hernandez's responses to questions
during both the plea and the sentencing hearings, the United
States contends that there is no evidence to support the
ineffective assistance of counsel claim. Finally, the United
States notes Mr. Callaghan's success in negotiating ...