United States District Court, E.D. Virginia, Richmond Division
(DENYING 28 U.S.C. § 2255 MOTION)
HENRY E. HUDSON, District Judge.
Lenza Terry, Jr. ("Terry"), a federal inmate proceeding pro se , submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion"). (ECF No. 27.) Terry argues entitlement to relief based on the following:
Claim One: The "[m]ovant is actually innocent of being a felon in possession of a firearm in the furtherance of a drug crime § 922(g)[(l)] & § 924(c), in light of... U.S. v. Simmons , 649 F.3d 237 (4th. Cir. 2011), " because the "movant only has one felony predicate offense and it never exceeded a year...." (Mem. Supp. § 2255 Mot. 2-3, ECF No. 28 (spacing and capitalization corrected).)
Claim Two: Counsel violated Terry's Sixth Amendment right to effective assistance of counsel by allowing Terry to plead guilty to the 18 U.S.C. § 924(c) count (Count Two) even though the Government lacked sufficient evidence to convict him of that count. (Reply Br. 4-5, ECF No. 34.)
In its response (ECF No. 30), the Government argues that Claim One lacks merit because the Government dismissed the 18 U.S.C. § 922(g)(1) count, a felony conviction is not a required element of 18 U.S.C. § 924(c), and Simmons is inapplicable. (Id. at 6-7) The Government argues that Claim Two also lacks merit because Terry offers only conclusory statements in support of his claim. (Id. at 6.) Terry has responded. The matter is now ripe for disposition.
I. PROCEDURAL HISTORY
On August, 3, 2010, a grand jury indicted Terry on three counts: Possession with Intent to Distribute Marijuana, in violation of 21 U.S.C. § 841(1) (Count One); Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c) (Count Two); and, Possession of a Firearm by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1) (Count Three). (Indictment 1-2, ECF No. 1.) Counsel negotiated a plea agreement with the Government pursuant to which Terry pled guilty to Count One and Count Two. (Plea Agreement 1-2, ECF No. 14.) In exchange for Terry's guilty plea, the Government agreed to dismiss Count Three. ( Id. at 5-6.)
Terry stipulated "that had the matter gone to trial, the United States would have proven each and every factual allegation beyond a reasonable doubt." (Statement of Facts 1, ECF No. 15.) Terry stipulated to the following facts:
1. On or about April 24, 2010, in the Eastern District of Virginia and within the jurisdiction of this Court, LENZA TERRY, JR., did knowingly, intentionally, and unlawfully possess with intent to distribute a mixture and substance containing a detectable amount of marijuana, in violation of Title 21, United States Code, Section 841.
2. On or about April 24, 2010, in the Eastern District of Virginia and within the jurisdiction of this Court, LENZA TERRY, JR., did possess firearms, to wit: a Springfield Armory Model XD-9 Sub Compact, caliber 9 x 19mm semi-automatic pistol, serial number US879050; a Colt Pocket Model, caliber 32 Auto, semi-automatic pistol, serial number 510456; and a Russian American Armory Company SAIGA, caliber 7.62 × 39mm, semiautomatic rifle, serial number H06100309, in furtherance of a drug-trafficking crime, in violation of Title 18, United States Code, Section 924(c).
3. On April 24, 2010, narcotics detectives from the Richmond Police Department responded to 631 Elgin Terrace, Richmond, Virginia, to investigate a narcotics complaint. Inside the residence, detectives smelled a strong odor of marijuana and observed what appeared to be marijuana and a marijuana grinder on a table in front of the television.
4. While the detectives were discussing the drug complaint with Ms. Taylor, the defendant, LENZA TERRY, JR., came downstairs. Detective Amanda Acuff requested permission to search the residence for additional drugs; however, the leaseholder could not make a decision. Due to the leaseholder's hesitation, Detective Acuff obtained a search warrant for the residence.
5. Detectives executed the search warrant on 631 Elgin Terrace and recovered a Springfield Armory Model XD-9 Sub Compact, caliber 9 x 19mm caliber semi-automatic pistol, serial US879050; a Colt Pocket Model, caliber 32 Auto, semi-automatic pistol, serial number 510456; a Russian American Armory Company SAIGA, caliber 7.62 × 39mm semiautomatic rifle, serial number H06100309; ammunition; approximately 1.8 ounces of marijuana; a digital scale; and packaging materials. Defendant stated that all three firearms belonged to him and he admitted to purchasing the rifle and 9mm handgun from the gun show and receiving the.32 caliber pistol from his grandfather.
6. A qualified forensic scientist with the Virginia Department of Forensic Science examined each of the firearms and determined that each firearm was in mechanical operating condition and was designed to expel a projectile by action of an explosive. Likewise, a Special Agent for the Bureau of Alcohol, Tobacco, Firearms, and Explosives determined that the firearms were manufactured outside of the Commonwealth of ...