United States District Court, E.D. Virginia, Newport News Division
OPINION AND ORDER
MARK S. DAVIS, District Judge.
This matter is before the Court on Petitioner Juan Daniel Iglesias Villacorta's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence, filed pursuant to 28 U.S.C. 2255. Petitioner's § 2255 motion alleges that his counsel was ineffective on three grounds. First, Petitioner argues that defense counsel was ineffective for failing to file an appeal after Petitioner asked him to. Second, Petitioner claims he did not enter into his guilty plea knowingly and voluntarily, but rather was induced to enter the plea by the faulty legal advice of defense counsel. Third, Petitioner claims that his counsel was ineffective for failing to inform him that he may be deported if he pled guilty. For the reasons discussed below, the Court DENIES Petitioner's § 2255 motion as to Grounds Two and Three, and ORDERS that an evidentiary hearing be scheduled as soon as practicable as to Ground One, in order to determine whether Petitioner asked his defense counsel to file an appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 11, 2009, a grand jury in Newport News returned an Indictment against Petitioner charging him with two counts: Count One, Conspiracy to Possess with Intent to Distribute and Distribute Cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and Count Two, Use of a Communication Facility in violation of 21 U.S.C. § 843. ECF No. 1.
Pursuant to a plea agreement, Petitioner pled guilty to Count One on August 13, 2012. On December 19, 2012, Petitioner was sentenced to forty-one months imprisonment and three years of supervised release. ECF No. 51. As a condition of his supervised release, Petitioner is to be surrendered to an immigration official for deportation review upon his release from prison. Id. at 4. Petitioner filed the current motion on April 3, 2013. ECF No. 55. The Government filed its response on June 5, 2013. ECF No. 57. Petitioner has not filed a reply brief and the time for doing so has since passed. Accordingly, this matter is ripe for review.
II. STANDARD OF REVIEW FOR § 2255 MOTION
A federal prisoner, in custody, may collaterally attack his sentence or conviction by moving the district court "to vacate, set aside or correct the sentence" pursuant to 28 U.S.C. § 2255. To obtain such relief, a petitioner bears the burden of proving that his 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). To obtain relief, 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).
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, 333 (4th Cir. 2000) (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 ordinary method for challenging a conviction or sentencing determination. United States v. Allgood , 48 F.Supp.2d 554, 558 (E.D. Va. 1999).
A claim for ineffective assistance of counsel is properly "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." See United States v. King , 119 F.3d 290, 295 (4th Cir. 1997) (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. See United States v. Baptiste , 596 F.3d 214, 216 n.1 (4th Cir. 2010) (quoting Massaro v. United States , 538 U.S. 500, 504-06 (2003)) ("[I]n most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance' because the trial record is often incomplete or inadequate for [addressing such claims on direct review, ]' thereby risking the failure of [e]ven meritorious claims.'") (alterations in original).
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 his defence." U.S. Const. amend. VI. The United States Supreme Court has interpreted the right to counsel as providing a defendant with "1the 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). In order to demonstrate that defense counsel failed to provide effective assistance, in violation of the Constitution, 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. "[U]nsubstantiated and largely conclusory statements" are insufficient to carry a petitioner's burden as to the two prongs of this test articulated in Strickland. United States v. Turcotte , 405 F.3d 515, 537 (7th Cir. 2005).
When evaluating counsel's performance under the first prong of the Strickland test, courts "must be highly deferential." Id. at 689; see also 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 his 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.
The second prong of the Strickland test requires a petitioner to "affirmatively prove prejudice." Id. at 693. To meet this prong, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. 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, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart , 474 U.S. 52, 59 (1985). If the Petitioner fails to prove either of the two prongs of the Strickland test, the Court need not evaluate the other prong of the test. United States v. Roane , 378 F.3d 382, 404 (4th Cir. 2004).
Petitioner's § 2255 motion advances three claims, all of which allege that Petitioner's counsel provided ineffective assistance. For the reasons discussed below, Petitioner's ...