United States District Court, E.D. Virginia, Alexandria Division
JAMES C. CACHERIS, District Judge.
This matter is before the Court on Petitioner Robert Mikail's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255. [Dkt. 149.] For the following reasons, the Court will deny Petitioner's motion.
On April 4, 2013, a federal grand jury indicted Petitioner on charges of bank fraud and conspiracy to commit bank fraud. (Indictment [Dkt. 1] at 1.) These charges stem from Petitioner's involvement in a mortgage fraud scheme that used straw buyers to submit falsified mortgage loan applications.
On July 17, 2013, Petitioner pled guilty to the conspiracy charge. Petitioner simultaneously entered a plea agreement wherein the Government agreed to drop the remaining charges and recommend various sentencing reductions in exchange English's representation was therefore ineffective. Both parties have filed pleadings and responsive materials in accordance with the Federal Rules of Civil Procedure and Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Accordingly this matter is ripe for review.
II. Standard of Review
A motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 allows a prisoner to challenge the legality of his sentence on four grounds: (1) "the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "the court was without jurisdiction to impose such sentence"; (3) "the sentence was in excess of the maximum authorized by law"; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The petitioner bears the burden of demonstrating his grounds for relief by a preponderance of the evidence. See Hall v. United States, 30 F.Supp.2d 883, 889 (E.D. Va. 1998).
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 for Petitioner's full cooperation. As part of the agreement, Petitioner acknowledged that "no threats, promises, or representations have been made, nor agreements reached, other than those set forth in writing in [the] plea agreement, to cause [him] to plead guilty." The agreement also informed Petitioner that any subsequent motion to reduce his sentence would be at the Government's sole discretion. During the ensuing plea colloquy, Petitioner affirmed under oath that he had received no predictions or promises as to the sentence he should expect to receive, and that he understood he would be bound by his plea and the terms of his plea agreement even if his actual sentence varied from what he expected to receive.
Petitioner appeared before the Court for sentencing on January 10, 2014. The Court adopted the Pre-Sentence Investigation Report, which assessed an advisory Guidelines range of 78 to 97 months. After a downward departure pursuant to U.S.S.G. § 5K1.1, the Court sentenced Petitioner to 52 months incarceration.
Petitioner did not appeal, but instead filed the instant motion on January 24, 2014. In his Petition, Mikail contends that defense counsel, Gregory English ("English"), advised that he would receive a sentence of 23 months if he cooperated. Mikail asserts that had he known he would not receive 23 months he would not have cooperated, and that (1974))). The existence of the right to pursue a collateral attack, however, 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). Consequently, claims regarding trial or sentencing errors that could have been, but were not, raised on direct appeal are procedurally barred from review under § 2255. See Bousley v. United States, 523 U.S. 614, 621-22 (1998). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause' and actual prejudice, '. or that he is actually innocent.'" Id . at 622 (citations omitted).
Nevertheless, an exception applies for claims of ineffective assistance of counsel. See United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998); 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." (citation omitted)). Under the standard promulgated in Strickland v. Washington, 466 U.S. 668 (1984), a petitioner is required to demonstrate two elements in order to state a successful claim for ineffective assistance: (1) "counsel's representation fell below an objective standard of reasonableness"; and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 688, 694.
To establish constitutionally deficient performance under the first prong, a petitioner must demonstrate that his lawyer "made errors so serious that counsel was not functioning as the counsel' guaranteed... 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 also Strickland, 466 U.S. at 687. Given 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. In assessing performance, a court must apply a "heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691.
The second prong requires a petitioner to "affirmatively prove prejudice, " which necessitates a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable ...