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Ashley v. United States

United States District Court, E.D. Virginia, Newport News Division

May 16, 2014



RAYMOND A. JACKSON, District Judge.

This matter is before the Court on Petitioner Arlington Ashley's Motion to Vacate or Set Aside Judgment of Conviction and Sentence Pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion"). ECF No. 132. Petitioner asks the Court to vacate his sentence because his attorneys" performances were so ineffective before trial, throughout trial and during his appeal that he was deprived of his constitutional right to assistance of counsel. For the reasons set forth below. Petitioner's § 2255 Motion is DENIED.


A federal grand jury charged Petitioner in a two-count Indictment with importing and possessing with intent to distribute cocaine. On January 3, 2011, Petitioner tiled a letter motion to dismiss counsel, which his attorney Walter B. Dalton followed up with a motion to withdraw. On March 4, 2011, the Court granted the motion to withdraw and appointed Jon M. Babineau as counsel. On May 9. 2011, a federal grand jury returned a Superseding Indictment, adding additional charges. Count One charged Petitioner with Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841(a)(1). Count Two charged Petitioner with Import Cocaine, in violation of 21 U.S.C. § 952. Count Three charged Petitioner with Felon in Possession of Firearm, in violation of 21 U.S.C. § 922(g)(1). Count Four charged Petitioner with Escape, in violation of 21 U.S.C. § 751(a).

On September 8, 2011, a jury found Petitioner guilty on Counts One, Two and Four of the Superseding Indictment. Prior to sentencing, Petitioner filed a motion for pro se representation based on ineffective assistance of counsel, which the Court granted and appointed Kevin Diamonstein as standby counsel. On December 20, 2011, Petitioner was sentenced to 252 months imprisonment on Count One to be served concurrently with 252 months imprisonment on Count Two and 60 months imprisonment on Count Four. On January 3, 2012, Mark Diamond was appointed to represent Petitioner on appeal. On July 20, 2012, the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") affirmed Petitioner's convictions and sentence by unpublished, per curium opinion. See United States v. Arlington Ashley, 490 F.Appx. 512, 2012 WL 2948555 (4th Cir. 2012). The Supreme Court of the United States ("Supreme Court") denied Petitioner's writ of certiorari on October 1, 2012. Petitioner filed the instant motion on October 2, 2013, and on October 15, 2013, the Court Ordered the Government to file a response to the Petitioner's motion within forty-five days. After receiving several extensions, the Government filed its opposition to Petitioner's § 2255 Motion on March 12, 2014.


Section 2255 of Title 28 of the United States Code 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. In a proceeding to vacate a judgment of conviction, petitioner bears the burden of proving his claim by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). See generally Gordon v. Leake, 574 F.2d 1147, 1151 (4th Cir. 1978), cert. denied, 439 U.S. 970 (1978) (providing that a pro se petitioner is entitled to have his petition construed liberally and is held to less stringent standards than an attorney drafting such a complaint). 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." 28 U.S.C. § 2255(b). Motions under § 2255 "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178 (1947). Ineffective assistance of counsel claims, however, should generally be raised in a collateral motion instead of on direct appeal. United Slates v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).

The standard for a claim of ineffectiveness of counsel relies on "whether the counsel's conduct so undermined the proper functioning of the adversarial process that the trial did not result in a just outcome." Strickland v. Washington, 466 U.S. 668, 686 (1984). To prove a claim of ineffective assistance of counsel, a petitioner must meet a two-part test: (1) the petitioner must show counsel's conduct was deficient as a violation of the Sixth Amendment, and (2) the petitioner must prove he was prejudiced as a result of counsel's defective conduct. Id. at 687. Attorney performance is held to a standard of reasonable effectiveness under the prevailing norms of the legal community. Id. at 688. To demonstrate deficient performance, Petitioner must show "that counsel's representation fell below an objective standard of reasonableness." Id It is presumed that counsel's conduct falls within a wide range of reasonable assistance and Petitioner bears the burden of proving otherwise. Id. at 689. 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). To demonstrate prejudice, Petitioner must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.


Petitioner provides a litany of conduct that he maintains is evidence of his attorneys' alleged ineffectiveness. See Pet'r's Mot. Vacate at 5-8. On all grounds offered as support for his § 2255 Motion, Petitioner has failed to allege sufficient prejudice arising from supposed deficient representation. Because Petitioner's allegations do not establish ineffective assistance of counsel, his § 2255 Motion is denied.

A. Ineffective Assistance of Counsel - Pre-trial Claims

Petitioner asserts that Attorney Dalton and Attorney Babineau were ineffective during the pre-trial phase of the case for their failure to pursue the following issues: 1) standing to contest execution of search warrant; 2) Immigration of Customs Enforcement's ("ICE") use of a tracking device; 3) ICE's improper execution of search warrant; 4) ICE's procurement of a defective search warrant; 5) arrest without probable cause supported by immigration status; 6) arrest without probable cause supported by chain of causation; and 7) use of out-of-court statements in violation of Miranda. Petitioner also asserts that counsel was ineffective for failing to call his mother, Tara Upshaw and Tashan Upshaw as witnesses at his probable cause and suppression hearings. As discussed herein, pursuant to the Strickland standard for ineffective assistance of counsel, Petitioner has not demonstrated that his attorneys' performances were deficient, nor has he shown any reasonable probability that but for any or all of counsels' alleged ineffective actions, the outcome of the proceedings would have been different.

i. Failure to Contest Search Warrant for Annette Court Apartment

Petitioner argues that pre-trial counsels' failure to assert standing to contest the search warrant executed on his girlfriend's apartment at 140 Annette Court ("Annette Court Apartment") constituted ineffective assistance. However, Petitioner has not demonstrated that his attorneys' decision not to assert standing was deficient. The Court finds that Attorney Babineau considered the admissibility of evidence acquired from the Annette Court Apartment, and filed a motion to suppress the evidence he believed to have been obtained in violation of Petitioner's constitutional rights. See Mot. Suppress Mem., ECF No. 53. Standing to challenge the search warrants at issue in this case was discussed during the suppression hearing, and Attorney Babineau stated that his client only had standing to contest the search warrant for the Chumley Court Apartment. Consequently, Attorney Babineau did not oppose the warrant to search the Annette Court Apartment, but instead objected to Petitioner's arrest at this location. Considering the circumstances and prevailing norms of practice, ...

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