United States District Court, Western District of Virginia, Harrisonburg Division
REPORT AND RECOMMENDATION
Hon. James G. Welsh U.S. Magistrate Judge
The petitioner, a federal inmate proceeding pro se, filed this action pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct a sentence. Her essential claim is that the assistance of her court-appointed counsel was unconstitutionally deficient and prejudiced her defense. In response the government filed a motion to dismiss the petition. By order entered September 26, 2013 (docket # 1012), the presiding district judge referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons stated herein, the undersigned finds that Ms. Kellam’s claims fail on their merits.
Therefore, the undersigned RECOMMENDS the government's motion to dismiss be GRANTED, the defendant’s § 2255 motion be DISMISSED with prejudice, the court DECLINE to issue a certificate of appealability, and this matter STRICKEN from the active docket to the court.
I. Statement of the Underlying Criminal Case
On September 6, 2006 a federal grand jury in this court returned a multi-defendant, multi-count indictment (docket #3). In Count One Ms. Kellam and eleven others were charged with participation in a conspiracy that began no later than January 2002 and continued until September 2006 to distribute fifty (50) grams or more of cocaine base (“crack”) in violation of 21 U.S.C. § 846. In Count Eight she was charged, as a principal and as an aider and abettor, with participation in the distribution of approximately 57.8 grams of crack on August 2, 2005 in violation of 21 U.S.C. § 841(b)(1)(A); in Count Seventeen she was charged with the knowing possession with intent to distribute approximately 1.85 grams of crack on April 4, 2006 in violation of 21 U.S.C. § 841(b)(1)(C), and in Count Eighteen she was charged with the knowing possession with intent to distribute approximately 12.1 grams of crack on May 31, 2006 in violation of 21 U.S.C. § 841(b)(1)(B).
On September 12, 2006 Ms. Kellam qualified for court-appointed counsel (docket #35); Michael Hemenway, a CJA panel attorney, was appointed to represent her (docket #50), and she entered Not Guilty pleas to all charges against her (docket #34).
On March 8, 2007 the government filed an Information pursuant to 21 U.S.C. § 851 giving notice the petitioner was subject to enhanced punishment by virtue of one or more, therein specifically identified, prior qualifying drug-related offenses (docket #291).
Following a multi-day trial (docket #335-343), on March 29, 2007 the petitioner, Charceil Davis Kellam, was convicted by a jury of all felony counts alleged against her in the Indictment (docket #343, 345). After considering and subsequently denying the defendant’s several post-trial motions (docket #365-366, 403-404, 419, 436-438, 445-447), Ms. Kellam submitted a pro se letter to the presiding district judge in which she expressed her dissatisfaction with defense counsel’s efforts on her behalf and sought the appointment of substitute counsel (docket #467). This motion was denied (docket #468-469).
After receipt of the information necessary to establish the defendant’s prior qualifying drug-related convictions, after consideration of the defendant’s objections to their validity and applicability and after making the requisite findings on the presentence investigation report (docket #473, 480, 483), the court imposed a sentence of life (statutory) on Counts One and Eight and 360 months on Counts Seventeen and Eighteen, with all sentences to run concurrently (docket #481)
In her appeal Ms. Kellam contended that the district court erred in five ways –– in dismissing the co-defendant from Count Eight, in denying her motion to suppress, in refusing to dismiss the indictments against her for lack of a speedy trial, in declining to enter judgments of acquittal and in imposing a statutory enhancement that resulted in the imposition of two concurrent terms of life imprisonment. United States v. Kellam, 568 F.3d 125, 129 (4th Cir. 2009) (docket #665).
In its written opinion dated June 3, 2009, the first four of these arguments were rejected by the Fourth Circuit. Her conviction was affirmed, but on her final contention the court concluded the prosecution had failed to prove beyond a reasonable doubt that Ms. Kellam was the person who committed the qualifying offenses necessary for sentence enhancement under 21 U.S.C. § 841(b)(1)(A). Therefore, the trial court’s sentence was vacated and the case was remanded for further proceedings (docket #665, 667). On remand, the government established beyond a reasonable doubt that Kellam had prior qualifying convictions “to support her life sentences, ” and she was resentenced to life in prison on Counts One and Eight. Following a second direct appeal (docket #753), these sentences were affirmed. United States v. Kellam, 403 Fed. App’x 815, 817-818 (4th Cir. 2010).
As a part of the second sentencing hearing, using the “amend[ed] crack guidelines, w[ith] 851 enhancements, ” the presiding district judge resentenced Ms. Kellam on Counts Seventeen and Eighteen to 235 months with all sentences to run concurrently (docket #749-751). In its subsequent unpublished opinion, the Fourth Circuit, affirmed Ms. Kellam’s two life sentences, vacated the revised sentences imposed in Counts Seventeen and Eighteen, and remanded the case with instructions to reinstate the original 360-month sentences (docket #796-797). In accordance with these instructions, an amended judgment was thereafter issued on December 9, 2010 (docket #799).
Appearing pro se, Ms. Kellam then filed a motion for a sentence reduction based on the Fair Sentencing Act of 2010 ("FSA"), 124 Stat. 2372, which changed the statutory minimum sentences for crack offenses, and the attendant Sentencing Guidelines amendments (docket #895). In its denial of Ms. Kellam’s motion, the district court found that both the FSA and the related guideline range amendments had no effect on her sentence because she was subject to a statutorily mandated term of life imprisonment and because the FSA did not apply retroactively (docket #909). Her subsequent petition to the Supreme Court for a writ of certiorari was also unsuccessful (see docket #957, p 5).
II. Statement of the Section 2255 Case
On April 2, 2012 Charcel Kellam (“Ms. Kellam” or “petitioner”) timely-filed (conditionally) her motion under 28 U.S.C. § 2255 to vacate, set aside or correct her sentence (docket #920). Two days later the court directed Ms. Kellam to submit her supporting memorandum on or before May 7, 2012 (docket #922). To assist her with this effort, the clerk was directed to forward the two government-provided DVDs containing discovery materials to Ms. Kellam, and the appropriate federal prison officials were requested make the necessary arrangements for her to review the DVDs as soon as possible (docket #924).
In connection with Ms. Kellam’s requests for an extension of time (docket #930, 951, 953), permission to share the DVDs with those assisting her (docket #930) and submission of the appropriate declarations from those assisting her (docket #941-1, 948, 949), the court entered orders granting the requested extensions of time to and including September 21, 2012 (docket #944, 952, 956).
Ms. Kellam’s memorandum dated September 20, 2012 was received and filed four days later (docket #957). Therein, she argues her entitlement to § 2255 relief on the basis of her court-appointed attorney’s failure to pursue plea negotiation or communicate a plea offer, his express refusal to allow her to testify at trial, his ineffective assistance at sentencing and the prosecutors’ misconduct and vindictiveness (docket #957, pp 17-27).
In its subsequently filed response the government argues Ms. Kellam’s § 2255 petition should be dismissed because she has failed to demonstrate that her court-appointed attorney committed unprofessional errors at any stage of the underlying criminal proceeding or that she was prejudiced as a result of such errors (docket #976). See Strickland v. Washington, 466 U.S. 668, 688-90, 694 (1984).
Upon his review of the parties’ submissions, the presiding district judge concluded in his memorandum opinion that the majority of Ms. Kellam’s claims could be resolved on the then-existing record, but “additional factual development [was] warranted” with respect to her claim[s] that her attorney had “fail[ed] to pursue plea negotiations or communicate a plea ...