UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7446
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL LEONARD WOODARD, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-cr-00191-BO-1; 5:12-cv-00106-BO)
Submitted: March 30, 2016 Decided: April 7, 2016
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul K. Sun, Jr., Kelly Margolis Dagger, ELLIS & WINTERS LLP,
Raleigh, North Carolina, for Appellant. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Barbara D.
Kocher, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Leonard Woodard appeals the district court’s order
denying relief on his 28 U.S.C. § 2255 (2012) motion. Woodard
originally pleaded guilty to possession with intent to
distribute marijuana and ecstasy, in violation of 21 U.S.C.
§ 841(a) (2012), and possession of a firearm in furtherance of a
drug trafficking offense, in violation of 18 U.S.C. § 924(c)
(2012), pursuant to a plea agreement in which the Government
agreed to move to dismiss the charge of possession of a firearm
by a felon, in violation of 18 U.S.C. § 922(g)(1) (2012). The
agreement included a waiver of Woodard’s right to appeal any
sentence not in excess of the advisory Guidelines range
established at the sentencing hearing, and to collaterally
attack the convictions or sentence except for claims of
ineffective assistance of counsel and prosecutorial misconduct
not known to Woodard at the time of his guilty plea.
The court originally sentenced Woodard below the advisory
Guidelines range to 180 months of imprisonment based on the
Government’s motion for a departure for Woodard’s substantial
assistance. Woodard appealed, and counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning whether the court erred in determining that Woodard
was a career offender. We granted the Government’s motion to
dismiss Woodard’s appeal of his sentence based on the appellate
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waiver. United States v. Woodard, 450 F. App’x 310 (4th Cir.
2011) (No. 11-4373).
Woodard then filed a 28 U.S.C. § 2255 motion, arguing that
he was no longer a career offender following this court’s
decision in United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc). The district court granted Woodard’s motion
and resentenced him. On the Government’s appeal, we vacated the
district court’s order and remanded, concluding that Woodard had
waived his right to collaterally attack his sentence. United
States v. Woodard, 523 F. App’x 262 (4th Cir. 2013) (No.
12-7937). The district court reinstated the original judgment
and appointed new counsel for Woodard. Substitute counsel filed
a supplemental § 2255 motion, arguing that Woodard’s trial
counsel rendered ineffective assistance in advising Woodard that
he could challenge his career offender status on collateral
review, despite his appellate waiver. The district court denied
relief on Woodard’s motion, but granted a certificate of
appealability. 28 U.S.C. § 2253(c) (2012). Woodard now
appeals. For the reasons that follow, we affirm.
We review the district court’s legal conclusions de novo
and its factual findings for clear error. United States v.
Fulks, 683 F.3d 512, 516 (4th Cir. 2012). Woodard argues that
his counsel rendered a deficient performance by erroneously
informing Woodard that he could collaterally attack his sentence
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in the face of his enforceable appellate waiver. Woodard also
argues that he demonstrated that counsel’s error prejudiced him
as, had he been correctly advised, he would have rejected the
Government’s plea offer and instead pleaded guilty to all three
counts without the benefit of a plea agreement.
We conclude that the court did not err in denying relief on
Woodard’s claim. * To prove a claim of ineffective assistance of
counsel, a defendant must show (1) “that counsel’s performance
was deficient,” and (2) “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). Under the second prong of the test in the
context of a conviction following a guilty plea, a defendant can
show prejudice only by demonstrating “a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty
*In reaching this conclusion, we reject the Government’s
argument that Woodard’s numerically second § 2255 motion was an
unauthorized successive motion, as the district court reinstated
the judgment following our remand of the court’s order granting
Woodard’s first § 2255 motion. See In re Goddard, 170 F.3d 435,
436-38 (4th Cir. 1999) (noting that vacating and reinstating a
judgment following successful § 2255 motion to allow defendant
to appeal “resets to zero the counter of collateral attacks
pursued”) (internal quotation marks omitted).
We also reject the Government’s contention that Woodard’s
claim is barred by his appellate waiver. The waiver explicitly
excepted claims of ineffective assistance not known to Woodard
at the time of his guilty plea.
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and would have insisted on going to trial.” Hill v. Lockhart,
474 U.S. 52, 59 (1985).
Here, assuming that counsel erroneously advised Woodard
that he could challenge his career offender status on collateral
review, we conclude that Woodard has failed to demonstrate
prejudice for his claim of ineffective assistance. Woodard
explicitly conceded that he would not have proceeded to trial
had counsel correctly advised him that he could not later
challenge his sentence on direct appeal or on collateral review
if the law changed after our decision in Simmons. See Hill, 474
U.S. at 59. Moreover, Woodard has also failed to demonstrate
that he would have pleaded guilty to all three counts rather
than accepting the plea agreement. At the time of Woodard’s
guilty plea, he would have been an armed career criminal based
on his prior convictions. See 18 U.S.C. § 924(e) (2012).
Without the benefit of the plea agreement, therefore, Woodard
would have faced a combined statutory mandatory minimum sentence
of 240 months of imprisonment, without the benefit of a
government substantial assistance motion. See 18 U.S.C.
§§ 922(g)(1), 924(c), (e). Woodard has failed to demonstrate
that it would have been rational to plead guilty to such
penalties based on the chance that the law would change in the
future. See Padilla v. Kentucky, 559 U.S. 356, 372 (2010)
(petitioner must demonstrate “that a decision to reject [a] plea
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bargain would have been rational under the circumstances” to
satisfy the Strickland standard).
Accordingly, we affirm the district court’s order. 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.
AFFIRMED
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