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Broyles v. United States

United States District Court, Fourth Circuit

December 30, 2013

UNITED STATES OF AMERICA, Respondent. Civil No. 2:llcv496


MARK S. DAVIS, District Judge.

This matter is before the Court on Petitioner Beth Ann Broyles' ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence, filed pursuant to 28 U.S.C. § 2255. Petitioner asserts that her conviction should be vacated because her counsel was ineffective, the Government committed prosecutorial misconduct, and she is actually innocent of the crime of which she was convicted. The Court finds that an evidentiary hearing is unnecessary because the record conclusively demonstrates that Petitioner is not entitled to the relief sought in her § 2255 motion. See R. Governing § 2255 Proceedings in U.S. Dist. Cts. 8(a). For the reasons discussed below, Petitioner's § 2255 motion is DENIED.


On September 17, 2009, pursuant to a written plea agreement, Petitioner pled guilty to Count One of the Second Superseding Indictment in this case. Count One charged Petitioner with Conspiracy to Defraud the United States, in violation of 18 U.S.C. § 371. According to the Statement of Facts ("SOF"), Petitioner drafted and submitted to the United States seasonal temporary worker H2B visa petitions containing "material misrepresentations, " which "render[ed] the overall application fraudulent." Statement of Facts ¶¶ 3-4, ECF No. 628. The SOF also indicates that, although Petitioner did not know "she was being hired to do anything fraudulent, " she received information over the course of the conspiracy that caused her to become "suspicious that the... data was false" and, based on the circumstances, she "should have known and should have recognized that [her co-defendant] was obviously lying to her." Id . ¶ 4. Pursuant to the plea agreement, the Government agreed to dismiss the remaining counts of the indictment against Petitioner, which included six counts of visa/asylum fraud, in violation of 18 U.S.C. § 1546(a). Plea Agreement ¶ 9, ECF No. 627.

On January 25, 2010, Petitioner appeared before the Court with counsel for sentencing. Petitioner was sentenced to eight months of imprisonment on Count One, beginning on February 25, 2010. On February 5, 2010, Petitioner filed a Notice of Appeal, ECF No. 780, and a Motion for Delayed Reporting to Marshal's Custody, based, in part, on her desire "to review the transcripts of the [sentencing] hearing with her new attorney before deciding to continue with an appeal or withdraw the appeal, " ECF No. 778 at 2. Petitioner's Motion for Delayed Reporting was denied on February 12, 2010. On February 16, 2010, Petitioner filed a Motion to Stay Pending Appeal, ECF No. 796, which was also denied. Petitioner reported to the U.S. Marshal on February 25, 2010. On June 16, 2010, the Fourth Circuit denied Petitioner's motion for release pending appeal. ECF No. 823. On September 28, 2010, the Fourth Circuit granted Petitioner's motion to dismiss her appeal. ECF No. 835.

Petitioner filed her § 2255 motion and supporting memorandum on September 2, 2011. ECF No. 854. On October 5, 2011, the Court directed the Government to file a response within 60 days. The Government filed its response on December 14, 2011. ECF No. 871. Petitioner filed her reply brief on January 4, 2012. ECF No. 873. On May 30, 2012, Petitioner filed a motion to amend her § 2255 motion, in light of an opinion issued by the United States Supreme Court, Global-Tech Appliances, Inc. v. SEB SA , 131 S.Ct. 2060 (2011), which Petitioner alleged "create[d] a new substantive rule" regarding "willful blindness." ECF No. 878. This Court denied Petitioner's motion to amend on January 23, 2013, observing that the Supreme Court did not state a new substantive rule for willful blindness, but rather affirmed the approaches taken by all Circuit Courts of Appeal, including the Fourth Circuit. This matter is now ripe for review.


A federal prisoner, in custody, may collaterally attack her sentence or conviction by moving the district court "to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. To obtain such relief, a petitioner bears the burden of proving that her sentence or conviction was "imposed in violation of the Constitution or laws of the United States, " that the district court "was without jurisdiction to impose such sentence, " that the sentence exceeds "the maximum authorized by law, " or that the sentence or conviction is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a). A petitioner must prove the asserted grounds for relief by a preponderance of the evidence. Miller v. United States , 261 F.2d 546, 547 (4th Cir. 1958). Because a § 2255 motion "is ordinarily presented to the judge who presided at the original conviction and sentencing... the judge's recollection of the events at issue may enable him summarily to dismiss a § 2255 motion." Blackledge v. Allison , 431 U.S. 63, 74 n.4 (1977). A § 2255 motion is, in essence, a statutory federal habeas corpus action that collaterally attacks a sentence or conviction through the filing of a new proceeding, as contrasted with a direct appeal. See In re Jones , 226 F.3d 328, 332-33 (4th Cir. 2000) ("[Section] 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.'" (quoting Davis v. United States , 417 U.S. 333, 343 (1974))). The existence of the right to pursue a collateral attack does not displace a direct appeal as the "usual and customary method of correcting trial errors." United States v. Allgood , 48 F.Supp.2d 554, 558 (E.D. Va. 1999). On the contrary, with limited exceptions, a petitioner advancing new claims asserted for the first time in a § 2255 motion "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady , 456 U.S. 152, 166 (1981). Accordingly, a § 2255 collateral challenge "may not do service for an appeal." Id. at 165.

The "higher hurdle" that applies to claims advanced for the first time in a § 2255 action exists because, once a defendant's opportunity to pursue a direct appeal has been waived or exhausted, there is "a final judgment [that] commands respect." Id. at 164-65. Accordingly, the doctrine of procedural default generally prevents a district court from reaching the merits of § 2255 claims that were not raised on direct appeal unless a petitioner can show: (1) "cause" excusing the failure to directly appeal such alleged errors; and (2) "actual prejudice resulting from the errors of which he complains." United States v. Mikalajunas , 186 F.3d 490, 492-93 (4th Cir. 1992). "The existence of cause 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. Pettiford , 612 F.3d 270, 280 (4th Cir. 2010) (quoting Mikalajunas , 186 F.3d at 493). As for prejudice, it is not enough for a petitioner to demonstrate "a possibility of prejudice, " but rather, she must show that errors "worked to [her] actual and substantial disadvantage, infecting [her] entire [case] with error of constitutional dimensions." Frady , 456 U.S. at 170.

Alternatively, a petitioner may overcome the procedural default bar in limited circumstances by demonstrating that "a miscarriage of justice would result from the refusal of the court to entertain the collateral attack, " such as where a petitioner can demonstrate actual innocence. Mikalajunas , 186 F.3d at 494. Actual innocence, however, "means factual innocence, not mere legal insufficiency" of a conviction. Bousley v. United States , 523 U.S. 614, 623-24 (1998); see Mikalajunas , 186 F.3d at 494 (indicating that a petitioner must demonstrate "actual factual innocence"). A petitioner "asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" House v. Bell , 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo , 513 U.S. 298, 327 (1995)). "A federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural default." Dretke v. Haley , 541 U.S. 386, 393-94 (2004).

A § 2255 petitioner need not, however, overcome the procedural default bar to advance a freestanding claim of ineffective assistance of counsel, which is properly asserted for the first time in a § 2255 motion. See United States v. King , 119 F.3d 290, 295 (4th Cir. 1997) ("[I]t is well settled that a claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance.'" (quoting United States v. Williams , 977 F.2d 866, 871 (4th Cir. 1992))). Such rule exists because the Federal Rules Governing § 2255 Proceedings permit expansion of the record, which is generally unavailable on direct appeal and often necessary to properly resolve an ineffective assistance claim. United States v. Baptiste , 596 F.3d 214, 216 n.l (4th Cir. 2010); see United States v. Allen , 491 F.3d 178, 191 (4th Cir. 2007) (indicating that ineffective assistance of counsel claims "are normally raised before the district court via 28 U.S.C. § 2255").

The Sixth Amendment to the Constitution of the United States provides that "the accused shall enjoy the right... to have the Assistance of Counsel for [her] defence." U.S. Const, amend. VI. The Supreme Court of the United States has interpreted the right to counsel as providing a defendant" the right to the effective assistance of counsel.'" Strickland v. Washington , 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson , 397 U.S. 759, 771 n.14 (1970)) (emphasis added). To obtain relief based on an allegation of ineffective assistance a petitioner must establish both that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) counsel's inadequate performance caused the petitioner prejudice. Id. at 687-88. "[Unsubstantiated and largely conclusory statements" are insufficient to carry a petitioner's burden as to the two prongs of the Strickland test. United States v. Turcotte , 405 F.3d 515, 537 (7th Cir. 2005).

When evaluating counsel's performance under the first prong of Strickland, courts "must be highly deferential." Strickland , 466 U.S. at 689; see Kimmelman v. Morrison , 477 U.S. 365, 381-82 (1986) (discussing the "highly demanding" Strickland standard). To establish constitutionally deficient performance, a petitioner must demonstrate that [her] lawyer "made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Strickland , 466 U.S. at 687. Such a showing must go beyond establishing that counsel's performance was below average, since "effective representation is not synonymous with errorless representation." Springer v. Collins , 586 F.2d 329, 332 (4th Cir. 1978); see Strickland , 466 U.S. at 687. As it is all too easy to challenge an act, omission, or strategy, once it has proven unsuccessful, "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland , 466 U.S. at 689. Courts should therefore "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.

In conducting a hindsight evaluation of counsel's performance, a court must recognize that there "are countless ways to provide effective assistance in any given case" and that "[e]ven the best criminal defense attorneys would not defend a particular client in the same way." Id . If defense counsel has made an adequate investigation into the facts and potential lines of defenses, "the strategic choices made as a result will seldom if ever be found wanting." Id. at 681 (internal quotation marks omitted). Accordingly, the difficulty in overcoming the general presumption that defense counsel provided effective assistance is even greater where counsel's actions required a strategic "assessment and balancing of perceived benefits against perceived risks"-such strategic decisions must be afforded "enormous deference.'" United States v. Terry , 366 F.3d 312, 317 (4th Cir. 2004) (quoting United States v. Kozinski , 16 F.3d 795, 813 (7th Cir. 1994)).

The second prong of Strickland requires a petitioner to "affirmatively prove prejudice, " which requires a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 693-94. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Court applies a slightly modified prejudice standard when a petitioner alleges ineffective assistance associated with the entry of a guilty plea, requiring the petitioner to demonstrate that "there is a reasonable probability that, but for counsel's errors, [s]he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart , 474 U.S. 52, 59 (1985). ...

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