United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND FINAL ORDER
REBECCA BEACH SMITH, District Judge.
This matter comes before the court on three motions filed by the Petitioner: 1) Motion to Vacate under 28 U.S.C. § 2255 ECF No. 254, filed on June 10, 2013, as amended,  ("Amended Habeas Motion"); 2) Motion for Appointment of Counsel in § 2255 Proceedings ("Motion for Appointment of Counsel"), ECF No. 261, filed on August 5, 2013; and 3) Motion for Evidentiary Hearing in 28 U.S.C. § 2255 Proceedings ("Motion for Hearing"), ECF No. 262, filed August 5, 2013.
I. Procedural History
The Petitioner was convicted in two separate federal criminal cases: Criminal Case No. 4:05cr5, before the undersigned judge, and Criminal Case No. 4:95cr37, before Judge Raymond A. Jackson. After having completed his terms of imprisonment, and while serving separate terms of supervised release, albeit at the same time, the Petitioner violated the terms of supervised release in both cases. Petitions and addenda were filed in each case alleging identical violations based on the same conduct.
On February 5, 2013, Judge Jackson found the Petitioner guilty of violating his supervised release in Criminal Case No. 4:95cr37, and sentenced him to twenty-four months imprisonment, with no further term of supervised release to serve. On March 1, 2013, the undersigned judge found the Petitioner guilty of violating his supervised release in the instant case, and sentenced him to twelve months imprisonment, to run consecutively with the sentence he received in Criminal Case No. 4:95cr37. The court also imposed a renewed forth-eight month term of supervised release following incarceration in the instant case.
On April 22, 2013, the Petitioner filed a Notice of Appeal in Criminal Case No. 4:95cr37. On June 10, 2013, the Petitioner filed his original Habeas Motion, challenging the sentence imposed for his supervised release violation in the instant case. On August 5, 2013, the Petitioner filed the Motion for Appointment of Counsel and the Motion for Hearing.
On August 7, 2013, this court held in abeyance the Petitioner's Habeas Motion, Motion for Appointment of Counsel, and Motion for Hearing, until the Fourth Circuit ruled on the pending appeal in Criminal Case No. 4:95cr37. The Fourth Circuit affirmed the district court in that case on December 9, 2013, with the mandate issuing on January 30, 2014. By order entered on February 26, 2014, the court lifted the abeyance, ECF No. 279, and now proceeds to consider the Petitioner's Amended Habeas Motion. The Petitioner also filed two Memoranda in Support of his Habeas Motion, on January 6, 2014, ECF No. 275, and on January 31, 2014, ECF No. 276, which the court has considered in reviewing the Amended Habeas Motion.
II. Legal Standard for § 2255 Petitions
A prisoner may challenge a sentence imposed by a federal court if: (1) the sentence violates the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum; or (4) the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). A sentence is "otherwise subject to collateral attack" if a petitioner shows that the proceedings suffered from "a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizio , 442 U.S. 178, 185 (1979) (quoting Hill v. United States , 368 U.S. 424, 428 (1962)).
The prisoner bears the burden of proving one of those grounds by a preponderance of the evidence. See Miller v. United States , 261 F.2d 546, 547 (4th Cir. 1958). If he satisfies that burden, the court may vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(b). If the motion, however, when viewed against the record, shows that the petitioner is entitled to no relief, the court may summarily deny the motion. Raines v. United States , 423 F.2d 526, 529 (4th Cir. 1970).
III. Amended Habeas Motion
The Petitioner's original Habeas Motion has been amended, with permission from the court, on four occasions. These various amendments list numerous grounds for relief. The court will first address the grounds for relief raised in the original Habeas Motion, followed by the claims raised in the subsequent amendments.
A. Counsel "Waived the Preliminary Hearing"
In his original Habeas Motion, the Petitioner first argues he received ineffective assistance of counsel because his counsel allegedly "waived the preliminary hearing." Habeas Mot. at 15.
To prove ineffective assistance of counsel, a petitioner must show by a preponderance of the evidence that (1) the attorney's performance was seriously deficient; and (2) such deficient performance prejudiced the petitioner by undermining the reliability of the judgment against him. See Strickland v. Washington , 466 U.S. 668, 687 (1984).
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." Savion 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 "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland , 466 U.S. at 689.
To demonstrate prejudice, a petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In doing so, he "must demonstrate that the error worked to his actual and substantial disadvantage, ' not merely that the error created a possibility of prejudice.'" Satcher v. Pruett , 126 F.3d 561, 572 (4th Cir. 1997) (quoting Murray v. Carrier , 477 U.S. 478, 494 (1986)). Because a petitioner must satisfy both parts of the 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. Strickland , 466 U.S. at 700.
Morrissey v. Brewster , 408 U.S. 471, 485 (1972), requires a preliminary hearing as due process for a potential revocation of parole when a parolee is arrested for an alleged violation. See also United States v. Copley , 978 F.2d 829, 831 (4th Cir. 1992) (extending Morrissey to supervised release revocation). In this case, the Petitioner was summoned to appear on the supervised release violation petition, ECF No. 241, on which he voluntarily appeared on December 21, 2012. He was not arrested and detained for his violations of supervised release, prior to his supervised release being revoked. In fact, the Petitioner was afforded a preliminary hearing, on December 21, 2012, before United States Magistrate Judge Lawrence R. Leonard, who set a personal recognizance bond for the Petitioner. ECF No. 244. Even if the due process requirements of Morrissey applied to a defendant not in custody, the hearing on December 21, 2012, fulfilled those requirements.' Accordingly, the Petitioner's failure to demonstrate that his counsel was deficient precludes relief on this ground, Strickland , 466 U.S. at 700, nor has he suffered any prejudice. See id. at 691.
B. Counsel Did Not Object to Lack of Written Notice of Violations
The Petitioner also argues in his original Habeas Motion and in various places in his subsequent amendments that he was never given any written notice of the violations of his conditions of supervised release. Habeas Mot. at 17. The Petitioner asserts that his counsel's failure to act on this alleged denial of due process constituted ineffective assistance of counsel. Id. at 16-17. The Petitioner also alleges that his counsel ...