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Wallace v. United States

United States District Court, E.D. Virginia

August 21, 2013


Mark Xavier Wallace (4:12-cv-00170), Petitioner, Pro se.

For USA (4:10-cr-00116), Plaintiff: Lisa Rae McKeel, LEAD ATTORNEY, Howard J. Zlotnick, United States Attorney's Office, Newport News, VA; Albert Blackwell Stieglitz, Jr, U.S. Department of Justice, Washington, DC.


Page 726



This matter comes before the court for the sole purpose of resolving Ground One of the Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (" Motion" ), filed on November 5, 2012 (ECF No. 65), together with an accompanying Memorandum in Support. The Motion claimed several grounds for relief. In Ground One, the Petitioner argued that his former counsel failed to communicate the terms of a plea offer extended by the United States in the underlying criminal case.

After denying all other claims in the Motion, the court held Ground One in abeyance pending expansion of the record. The court held an evidentiary hearing on July 30, 2013, and the matter is now ripe for final disposition. For the reasons set forth below, the court DENIES the Motion in its entirety.


The extensive factual and procedural history of this case is detailed in the Memorandum Order of January 30, 2013 (ECF No. 68), and the Opinion and Final Order of April 4, 2013 (ECF No. 71) (hereinafter " April 4 Opinion" ). Although the April 4 Opinion was captioned as a " Final Order," shortly after its entry, the court received sworn documents from the Petitioner directly contradicting the affidavit filed by his former attorney, Assistant Federal Public Defender Keith L. Kimball. The competing affidavits of the Petitioner and Mr. Kimball created a disputed issue of fact relevant to the ineffective assistance of counsel claim. Specifically, the parties disputed whether Mr. Kimball discussed with the Petitioner the option of pleading guilty, without a cooperation agreement, to the sole count of the Indictment, which charged him with unlawful possession of a firearm by a felon, in order to obtain a three-point reduction in his offense level for acceptance of responsibility under the advisory sentencing guidelines. That option represented the substance, and extent, of the United States' plea offer, extended by fax on November 19, 2010.

Page 727

The court issued an Order on May 15, 2013 (ECF No. 75), holding in abeyance the judgment (ECF No. 72) entered pursuant to the court's April 4 Opinion, appointed attorney Harry Harmon to represent the Petitioner in this limited inquiry, and convened an evidentiary hearing on July 30, 2013. Mr. Kimball attended the hearing at the direction by the court, as did attorney Michael Morchower, who represented the Petitioner at trial in December 2010, after the Petitioner discharged Mr. Kimball.


To prove ineffective assistance of counsel, a petitioner must show by a preponderance of the evidence that 1) his attorney's performance was deficient, and 2) the attorney's deficient performance prejudiced the petitioner by undermining the reliability of the judgment against him. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because a petitioner must satisfy both prongs of the ineffective assistance test, a failure to carry the burden of proof as to one prong precludes relief and relieves the court of the duty to consider the other. Id. at 700.

To show deficient performance, counsel's actions or omissions must be measured against what " an objectively reasonable attorney would have done under the circumstances existing at the time of the representation." Savino v. Murray, 82 F.3d 593, 599 (4th Cir. 1996); see also Lawrence v. Branker, 517 F.3d 700, 708-09 (4th Cir. 2008). The court must attempt to " eliminate the distorting effects of hindsight," and instead " indulge a strong presumption that counsel's challenged conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. The right to effective assistance of counsel includes the duty of counsel to communicate formal plea offers from the prosecution. See Missouri v. Frye, 132 S.Ct. 1399, 182 L.Ed.2d 379 ...

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