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 two motions filed by Petitioner Anthony Echevarria ("Petitioner"). The Court considers Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, filed pursuant to 28 U.S.C. § 2255, in which Petitioner asserts he is "actually innocent" of the crime to which he pled guilty. Pet'r's § 2255 Mot. at 5, ECF No. 36. The Court also considers Petitioner's "Combined Motions" seeking leave to supplement his response to the Government's opposition brief and requesting "Summary Judgment, " or alternatively, an Evidentiary Hearing. Pet'r's Combined Mots. at 1, ECF No. 42. For the reasons discussed below, Petitioner's motions are DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 9, 2008, pursuant to a written plea agreement, Petitioner pled guilty to Counts One and Two of the Indictment in this case. Count One charged Petitioner with Attempt to Obstruct, Delay, and Affect Commerce by Robbery, in violation of 18 U.S.C. § 1951(a). Count Two charged Petitioner with Use, Carry, and Possess a Firearm During and in Relation to and in Furtherance of a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A).
According to the Statement of Facts, on May 9, 2007, Petitioner exited a maroon SUV "in the area of 21st Street and Jefferson Avenue in the City of Newport News, " armed with a black revolver. Statement of Facts TT 2-3, ECF No. 18. Petitioner pointed the revolver at the victim, a "known heroin trafficker in the City of Newport News, " and asked the victim, "where the drugs at?" Id . ¶¶ 1, 3. When the victim responded that the "drugs took off running, " Petitioner, "continu[ing] to hold [the victim] at gunpoint, " took approximately $100 from the victim's pocket, and "then departed in his maroon SUV." Id . ¶ 3. The victim reported the robbery to the police, "provided detailed descriptions of [Petitioner] and his vehicle, " and "identified [Petitioner's] photo from a photospread as the individual who robbed him." Id . ¶ 4. A search of Petitioner's residence revealed "a black... revolver, " and "seventy-five (75) rounds of.44 caliber ammunition." Id . ¶ 5. While at the Newport News City Jail, Petitioner "made several phone calls on jail telephones..., during which he discussed his robbery of [the victim] and the black revolver recovered from his bedroom." Id . ¶ 6.
Pursuant to the plea agreement, the Government agreed to dismiss Count Three of the Indictment against Petitioner, Plea Agreement ¶ 11, ECF No. 17 (sealed), charging Petitioner with Felon in Possession of a Firearm and Ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), Indictment at 3, ECF No. 1. On April 9, 2008, the Court accepted Petitioner's guilty plea and on September 11, 2008, sentenced Petitioner to fiftyone (51) months of imprisonment on Count One and eighty-four (84) months of imprisonment on Count Two, to be served consecutively with Count One.
Petitioner filed his § 2255 motion and supporting memorandum on July 12, 2013. ECF Nos. 36, 37. The Government filed its response on July 31, 2013. ECF No. 40. Petitioner filed his reply brief on August 23, 2013. ECF No. 41. On September 10, 2013, Petitioner filed his "Combined Motions." ECF No. 42. Accordingly, this matter is 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. 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). 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.
The "higher hurdle" that applies to claims advanced for the first time in a § 2255 action exists because, once a defendant's opportunity to pursue a direct appeal has been waived or exhausted, there is "a final judgment [that] commands respect." Id . at 164-65. Accordingly, the doctrine of procedural default generally prevents a district court from reaching the merits of § 2255 claims that were not raised on direct appeal unless a petitioner can show: (1) "cause" excusing the failure to directly appeal such alleged errors; and (2) "actual prejudice resulting from the errors of which he complains." United States v. Mikalajunas , 186 F.3d 490, 492-93 (4th Cir. 1992). "The existence of cause for a procedural default must turn on something external to the defense, such as the novelty of the claim, or a denial of effective assistance of counsel.'" United States v. Pettiford , 612 F.3d 270, 280 (4th Cir. 2010) (quoting Mikalajunas , 186 F.3d at 493). As for prejudice, it is not enough for a petitioner to demonstrate "a possibility of prejudice, " but rather, he must show that errors "worked to his actual and substantial disadvantage, infecting his entire [case] with error of constitutional dimensions." Frady , 456 U.S. at 170.
Alternatively, a petitioner may overcome the procedural default bar in limited circumstances by demonstrating that "a miscarriage of justice would result from the refusal of the court to entertain the collateral attack, " such as where a petitioner can demonstrate actual innocence. Mikalajunas , 186 F.3d at 494. Actual innocence, however, "means factual innocence, not mere legal insufficiency" of a conviction. Bousley v. United States , 523 U.S. 614, 623-24 (1998); see Mikalajunas , 186 F.3d at 494 (indicating that a petitioner must demonstrate "actual factual innocence"). A petitioner "asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" House v. Bell , 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo , 513 U.S. 298, 327 (1995)). "A federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural default." Dretke v. Haley , 541 U.S. 386, 393-94 (2004).
A § 2255 petitioner need not, however, overcome the procedural default bar to advance a freestanding claim of ineffective assistance of counsel, which 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 of the United States has interpreted the right to counsel as providing a defendant "the right to the effective assistance of counsel.'" Strickland 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. 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.
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 . If defense counsel has made an adequate investigation into the facts and potential lines of defenses, "the strategic choices made as a result will seldom if ever be found wanting." Id . at 681 (internal quotation marks omitted). 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" - ...