Argued: December 9, 2016
from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:04-cr-00356-F-1; 5:10-cv-00445-F)
Richard Clarke Speaks, SPEAKS LAW FIRM, Wilmington, North
Carolina, for Appellant.
Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Stuart Bruce, Acting United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for
WILKINSON, NIEMEYER, and DIAZ, Circuit Judges.
NIEMEYER, Circuit Judge:
W. Powell was convicted of federal drug and firearms offenses
and sentenced to 300 months' imprisonment, and his
conviction and sentence were affirmed on direct review.
Powell then filed a motion under 28 U.S.C. Â§ 2255 to vacate
his conviction and sentence on numerous grounds, most of
which were based on his claim that his trial counsel provided
him with ineffective assistance, violating his Sixth
Amendment right to counsel. As to the specific claim of
ineffective assistance at issue here, he alleged that his
counsel's performance was deficient because she failed to
bring to the attention of the trial court the fact that,
before the trial began, a member of the jury approached
Powell's father while entering the courthouse and told
him that "everything would be alright" and that he
needed to give his son "a good kick in the butt, "
thereby allegedly demonstrating bias against Powell.
district court denied Powell's Â§ 2255 motion, and we
affirm. Because the juror's alleged statement did not
sufficiently indicate actual bias against Powell but was
instead ambiguous, we conclude that his counsel's
response fell within the range of competent representation
required by the Sixth Amendment.
three-day trial in June 2005, a jury convicted Powell of (1)
possessing with the intent to distribute 50 grams or more of
cocaine base and a quantity of cocaine, in violation of 21
U.S.C. Â§ 841(a)(1) and 18 U.S.C. Â§ 2; (2) participating in a
conspiracy to possess with the intent to distribute more than
50 grams of cocaine base and a quantity of cocaine, in
violation of 21 U.S.C. Â§ 846; (3) possessing with the intent
to distribute marijuana, in violation of 21 U.S.C. Â§
841(a)(1); (4) possessing a firearm during and in relation to
a drug trafficking crime, in violation of 18 U.S.C. Â§
924(c)(1); and (5) possessing a firearm after having been
convicted of a felony, in violation of 18 U.S.C. Â§Â§ 922(g)(1)
and 924. Imposing a downward variance sentence, the district
court sentenced Powell to 300 months'
imprisonment. On appeal, we
affirmed. United States v. Powell, 225 F.App'x
138 (4th Cir. 2007) (per curiam). The Supreme Court, however,
vacated our judgment and remanded for further consideration
in light of Kimbrough v. United States, 552 U.S. 85
(2007). See Powell v. United States, 552 U.S. 1091
(2008) (mem.). On remand, the district court imposed the same
term of imprisonment at Powell's resentencing. On appeal,
we rejected Powell's challenge to the substantive
reasonableness of his sentence and again affirmed. United
States v. Powell, 330 F.App'x 433 (4th Cir. 2009)
(per curiam). The Supreme Court denied Powell's second
petition for certiorari in October 2009. Powell v. United
States, 558 U.S. 976 (2009) (mem.).
pro se Â§ 2255 motion, Powell raised 16 different
challenges to his conviction and sentence, many of which were
premised on his trial counsel's allegedly ineffective
assistance. In one of these claims, Powell alleged that his
trial counsel provided ineffective assistance because she
failed to attempt to have a biased juror removed. In support
of this claim, he submitted his own affidavit, as well as one
from his father, which detailed an ...