United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
MARK S. DAVIS, District Judge.
This matter is before the Court on Petitioner Alan Paul Strieper'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 trial and appellate counsel were ineffective for failing to challenge a Guideline enhancement applied at Petitioner's sentencing, and that his appellate counsel was ineffective for failing to challenge trial counsel's performance. The Court finds that an evidentiary hearing is unnecessary because the record conclusively demonstrates that Petitioner is not entitled to the relief sought in his § 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.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 11, 2010, Petitioner pled guilty, without a written plea agreement, to the following four criminal felony charges: one count of Attempted Enticement, in violation of 18 U.S.C. § 2422(a); two counts of Receipt of Child Pornography, in violation of 18 U.S.C. § 2252A(a) (2); and one count of Possession of Material Containing Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5). The Presentence Investigation Report ("PSR"), which was prepared in advance of Petitioner's sentencing hearing, recommended that the Court apply two five-level enhancements to calculate Petitioner's Guideline range. Specifically, the PSR Guideline calculation included a five-level enhancement for engaging in "a pattern of activity involving the sexual abuse or exploitation of a minor, " U.S.S.G. § 2G2.2(b)(5) (hereinafter "five-level exploitation enhancement"), and a five-level enhancement for distribution of child pornography "for receipt, or expectation of receipt, of a thing of value, " U.S.S.G. § 2G2.2(b)(3)(B) (hereinafter "five-level distribution enhancement"). Petitioner's trial counsel objected to the five-level exploitation enhancement but did not object to the five-level distribution enhancement. After considering extensive argument from the government and defense counsel regarding the five-level exploitation enhancement, the Court overruled defense counsel's objection. The resulting Guideline calculation was an Offense Level 42, Criminal History Category of I, and an unrestricted advisory Guideline range of 360 months to life. The Court sentenced Petitioner to 420 months imprisonment.
On October 1, 2010, Petitioner appealed his sentence to the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit"). Petitioner's appellate counsel, which included his trial counsel and a second attorney, argued on appeal that this Court committed error by applying both five-level setencning enhancements. On January 23, 2012, the Fourth Circuit affirmed Petitioner's sentence. United States v. Strieper , 666 F.3d 288 (4th Cir. 2012).
Petitioner filed his initial § 2255 motion on January 22, 2013. The government thereafter filed a brief in opposition. On April 8, 2013, after the government had already responded, Petitioner filed an amended § 2255 motion. Upon receiving such amended filing, the Court issued an order providing the government a second opportunity to respond. On May 22, 2013, the government filed a response in opposition to Petitioner's amended § 2255 motion. Petitioner did not file a reply brief, and this is matter is now ripe for review.
II. STANDARD OF REVIEW
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." 28 U.S.C. § 2255(a). 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." Id . 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.
A freestanding claim of ineffective assistance of counsel 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.1 (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 his defence." U.S. Const. amend. VI. The Supreme Court 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. "[U]nsubstantiated 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 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. 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." Id. 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 . 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." United States v. Terry , 366 F.3d 312, 317 (4th Cir. 2004). "Once counsel conducts a reasonable investigation of law and facts in a particular case, his strategic decisions are virtually unchallengeable.'" Powell v. Kelly , 562 F.3d 656, 670 (4th Cir. 2009) (quoting Strickland , 466 U.S. at 690).
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. 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 challenge the effectiveness of defense counsel's representation. For the reasons discussed below, each of Petitioner's claims fails on the merits.
A. Ineffective Assistance of Trial Counsel
Petitioner first claims that his trial counsel provided ineffective assistance by failing to object to the five-level distribution enhancement applied at sentencing. The relevant Guideline section provides for a five-level enhancement when a child pornography offense involves " [d]istribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain." U.S.S.G. § 2G2.2(b)(3)(B). The application notes to the Guidelines define "distribution" to include "posting material involving the sexual ...