United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON, District Judge.
Before the Court is a motion submitted pursuant to Title 28, United States Code, Section 2255 to vacate, set aside, or correct sentence by a person in federal custody ("§ 2255 Motion") filed by Justin Marcellus Norman ('Petitioner"). Having thoroughly reviewed the parties' filings in this case, the Court finds this matter is ripe for judicial determination. For the reasons set forth below, Petitioner's § 2255 Motion is DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
Petitioner was indicted November 9, 2011 and charged with two counts or Felon in Possession of a Firearm, in violation of 18 § 922(g)(1), and one count of Felon in Possession of Ammunition in violation of 18 § 922(g)(1). A superseding indictment was returned on December 13, 2011, charging Petitioner with (1) Assault with Intent to Commit Murder in violation of 18 U.S.C. §§ 113(a) and 7(3); and (2) Using or Carrying a Firearm in Relation to a Crime of Violence in violation of 18 U.S.C. 924(c)(1). A second superseding indictment was filed on January 10, 2012, and charged Petitioner with (1) Assault with Intent to Commit Murder (Count 1); (2) Using or Carrying a Firearm in Relation to a Crime of Violence (Count 2); (3) Felon in Possession of a Firearm (Count 3); and (4) Felon in Possession of Ammunition (Count 4).
On February 14, 2012 this Court granted a motion by the Government to dismiss Count 4. A two-day jury trial concluded on February 15, 2012. Petitioner was found guilty on Count 3 of being a felon in possession of a firearm, guilty of Simple Assault, a lesser included offense on Count 1, and not guilty on Count 2. On June 1, 2012, the Court determined that the applicable Guidelines range was 63 to 78 months (resulting from an Offense Level of 20 and a Criminal History of V) and sentenced Petitioner to six months on Count 1 and 66 months on Count 3, to run concurrently.
On April 26, 2013 Petitioner, acting pro se, filed a timely § 2255 Petition alleging ineffective assistance of counsel. ECF No. 51. The motion was filed on April 26, 2013, but Petitioner was notified that the document was deficient because he had failed to sign it. Petitioner timely re-filed and on June 14, 2013, the Court directed the Government to respond. ECF No. 53. The Court granted the Government's Motion for Extension of Time to File Response/Reply, and the Government subsequently filed its response on September 26, 2013. ECF No. 56. Noting that Petitioner contended that his trial counsel had failed to file an appeal and that the Government agreed further fact-finding was necessary, the Court appointed counsel for Petitioner and directed his trial counsel to file an affidavit addressing Petitioner's contention. Further, the Court set forth a timeline allowing the Government to respond to that affidavit and allowing Petitioner's newly appointed counsel to file a reply. ECF No. 59, 60. On February 11, 2014, the Government filed its Response, ECF No. 61, and on March 3, 2014, Petitioner filed his Reply, ECF No. 62. On April 17, 2014, the Court held a hearing to address Petitioner's claims regarding his trial counsel's failure to file an appeal.
In his § 2255 Petition, Petitioner raises two grounds for relief. First, he alleges that his counsel was constitutionally ineffective in preparing for trial and during trial for various reasons because the conduct of Petitioner's counsel "constituted incompetence of the highest degree." Second, Petitioner alleges that his counsel was constitutionally ineffective in failing to file a notice of appeal upon the request of Petitioner. The Government argues that Petitioner received effective legal representation and cannot establish any errors his counsel made.
II. LEGAL STANDARDS
A. Section 2255
Title 28 U.S.C. § 2255 provides in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). When deciding a § 2255 motion, the Court must promptly grant a hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Id. § 2255(b). However, in the interests of judicial economy and avoiding an expensive evidentiary hearing, the Court may "require that the record be expanded to include letters, documentary evidence, and... affidavits." Raines v. United States, 423 F.2d 526, 530-31 (4th Cir. 1970); Rule 7 of the Rules Governing § 2255 Proceedings.
Motions under § 2255 "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178 (1947). For this reason, issues already fully litigated on direct appeal may not be raised again under the guise of a collateral attack. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976). Similarly, "the general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro V. United States, 538 U.S. 500, 504 (2003). Ineffective assistance of counsel claims, however, should generally be raised in a collateral motion instead of on direct appeal and are not subject to the cause and prejudice standard. United Slates v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Petitioner bears the burden of showing he is entitled to relief by a preponderance of the evidence. Miller ...