United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON, District Judge.
Before the Court are a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 ("§ 2255 Motion") and a Motion for Leave to Amend pursuant to Federal Rule of Civil Procedure 15 ("Motion to Amend"), each filed by Petitioner, James Ramone Tucker ("Petitioner"), proceeding pro se. This matter has been fully briefed and is ripe for judicial determination. For the reasons stated herein, Petitioner's Motion to Amend is GRANTED and the § 2255 Motion is DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
On May 18, 2011, Petitioner was indicted and charged with Conspiracy to Distribute and Possess with to Intent to Distribute one hundred (100) grams or more of a mixture and substance containing a detectable amount of heroin, a Schedule I narcotic controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(i). ECF No. 1. On July 18, 2011, Petitioner entered a guilty plea, pursuant to a plea agreement. ECF No. 13. On November 8, 2011, Petitioner was sentenced to one hundred twenty-five (125) months imprisonment. ECF No. 22.
On June 13, 2013, Petitioner filed under seal a Motion to Compel the United States to file a Rule 35 motion (or a § SKI.] motion), ECF No. 26, because Petitioner believed he was entitled to a sentence reduction in exchange for providing substantial assistance to the Government, pursuant to the plea agreement. On June 19, 2013, this Court denied the Motion to Compel based on the express terms of the plea agreement, which gave the United States complete discretion over whether to file a sentence reduction motion. ECF No. 27. On July 5, 2013, Petitioner filed a Notice of Appeal of this Court's decision on the Motion to Compel. ECF No. 28. On September 27, 2013, the United States Court of Appeals for the Fourth Circuit affirmed this Court's denial of the Motion to Compel and denied the appeal in an unpublished per curiam opinion. ECF No. 33.
On November 12, 2013, Petitioner filed the § 2255 Motion, ECF No. 38, along with a Memorandum in Support ("Pet'r's Mein. Supp."), which duplicated the arguments from the Motion to Compel regarding Petitioner's entitlement to a sentence reduction motion based on his substantial assistance to the Government. ECF No. 39. On January 3, 2014, the Government filed its Response to Petitioner's § 2255 Motion ("Gov't Rcsp. to Mot. to Vacate"). ECF No. 43. On February 24, 2014, Petitioner filed the Motion to Amend, ECF No. 47, seeking to add an additional claim of ineffective assistance of counsel, along with a Traverse to United States' Response to § 2255 Motion ("Pet'r's Reply I"). ECF No. 46. On March 7, 2014, the Government filed its Response to Petitioner's Motion to Amend. ECF No. 48. On May 7, 2014, Petitioner filed a Traverse to United States' Response to Petitioner's Motion to Amend ("Perr's Reply II"). ECF No. 51.
II. LEGAL STANDARD
A. 28 U.S.C. § 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) (2012). Petitioner bears the burden of proving the grounds for his collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). When deciding a § 2255 motion, the Court is not required to grant a hearing if "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 "may not do service for an appeal" and have a far more limited scope. United States v. Frady, 456 U.S. 152, 165 (1982). Only constitutional, jurisdictional, or fundamental defects fall within the ambit of a valid § 2255 collateral attack. See 28 U.S.C. § 2255; see also United States v. Addonizio, 442 U.S. 178, 185 (1979) ("An error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice."). Non-constitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings. Stone v. Powell, 428 U.S. 465, 478 n. 10 (1976), see also Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976) (noting that if an appellate court has already considered the issues they may not be reintroduced "under the guise of a collateral attack"). 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, are constitutional and should generally be raised in a collateral motion instead of on direct appeal. United States v. Richardson, 195 F.3d 192, 196 (4th Cir. 1999).
B. Pro Se Defendants
A pro se defendant is entitled to have his petition and asserted issues construed liberally. Pro se defendants are held to a less stringent standard than attorneys draft ing such complaints. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). However, pro se defendants must include in a § 2255 motion each ground supporting the claim for relief and "factual allegations must be stated with sufficient specificity to allow a reader to determine from the face of the motion whether further review is warranted." Watson v. United States, No. 1:07CR396, 2011 WI_ 6697900. at *2 (E.D. Va. Dec. 20, 2011); see also Oliver v. United States, 961 F.2d 1339, 1343 n. 5 (7th Cir. 1992) ("No hearing is required in a section 2255 proceedingthe allegations in the motion are unreasonably vague, conclusory, or incredible..."). Accordingly, the allegations and facts haven been interpreted as reasonably as possible.
C. Ineffective Assistance of Counsel
In evaluating an ineffective assistance of counsel claim, the Court relies on the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the United States Supreme Court held that a finding of ineffective assistance of counsel requires a two-pronged showing, and a habeas petitioner bears the burden of persuasion for both prongs. Id. at 687. Petitioner must show that: (1) counsel's representation was deficient, and (2) Petitioner was prejudiced by the performance. Id. at 693. To prevail, both prongs must be satisfied and if Petitioner makes an insufficient showing on one prong, the Court need not address the other. Id. at 697.
To satisfy prong one, Petitioner must show that counsel's performance was deficient. Id. at 687. "Deficient performance" is not merely below average; rather, counsel's actions must fall below objective standards of reasonableness. Id. at 687-88. In assessing an attorney's performance, judicial scrutiny must be "highly deferential" to tactical decisions, and the Court must filter from its analysis the distorting effects of hindsight. Id. at 689. The first prong of Strickland ...