United States District Court, E.D. Virginia, Richmond Division
HENRY E. HUDSON, District Judge.
(Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 and Motion to Amend or Supplement)
The Petitioner, Harry Rhyne McCall ("McCall"), presently a federal inmate, was convicted by a jury of this Court on December 21, 2010, of Conspiracy to Violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. § 1962(d) (Count One); Conspiracy to Commit Violence in Aid of Racketeering, in violation of 18 U.S.C. § 1959(a)(6) (Count Two); Violence in Aid of Racketeering, in violation of 18 U.S.C. §§ 1959 and 2 (Count Three); and Possession of a Firearm in Furtherance of an Act of Violence, in violation of 18 U.S.C. §§ 924(c) and 2 (Count Four).
On April 8, 2011, McCall was sentenced to 97 months of imprisonment on Count One, 36 months on Count Two, to be served concurrently, 97 months on Count Three, to be served concurrently, and 60 months on Count Four, to be served consecutively. His convictions were affirmed by the United States Court of Appeals for the Fourth Circuit on August 2, 2012. Werth v. United States, 493 F.App'x 361, 364 (4th Cir. 2012). The case is presently before the Court on McCall's Motion to Vacate, Set Aside or Correct his Sentence Pursuant to 28 U.S.C. §2255 (ECF No. 1027) which he has timely filed pro se. Both McCall and the United States have filed memoranda supporting their respective positions.
Although McCall styles his claims as demonstrative of ineffective assistance of trial counsel, the overarching theme of his motion is overzealous prosecutorial tactics and outrageous governmental conduct. In his view, the defense should have focused primarily on the government's decision to prosecute members of the Outlaw Motorcycle Organization ("Outlaws") and the strategy used by the Bureau of Alcohol, Tobacco, Firearms & Explosives ("ATF")to infiltrate the organization. The tenor of his grievance is well captured by his comment, "the tactics with which federal authorities pursued McCall, suggest that the prosecution and Alcohol Tobacco and Firearms, ... agents over zealousness, led authorities to cross critical Constitutional lines, in turn, raising serious concerns that McCall's trial were or could have been fair and a reliable test of the government[']s accusations." (McCall's Mem. Support Mot. Vacate 2, ECF No. 1028.) As this preface to McCall's memorandum suggests, his claim of ineffective assistance of counsel is premised on his belief that trial counsel should have more aggressively challenged the government's conduct. Given the strength of the government's case, his suggested diversionary tactics would have had little likelihood of success.
The standard for review of petitions filed under 28 U.S.C. § 2255 is well established. To demonstrate ineffective assistance of counsel, a defendant must show first that counsel's representation was deficient, and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficiency-performance prong of Strickland, the defendant must overcome the "strong presumption" that counsel's strategy and tactics fall "within the wide range of reasonable professional assistance." Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component requires a defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697. To prevail, Petitioner must demonstrate a "reasonable probability of a different outcome." Lenz v. Washington, 444 F.3d 295, 303 (4th Cir. 2006) (internal citations and quotation marks omitted).
McCall's claim of ineffective assistance of counsel, as delineated in his supporting memorandum, appears to have eight distinct, but partially related, facets:
(1) McCall[']s counsel was ineffective for failure to object to McCall's sentence which is unconstitutional because the jury's findings of racketeering activity does not support activity which carries the greatest offense level sunder the USSG § 2E1.1(a)(2) (2007). Appellate counsel was ineffective for failure to raise this issue on direct appeal;
(2) The district court did err in applying a two point level increase under USSG section 3B1.1(b) and appellate counsel was ineffective for failing to challenge this err[or] on direct appeal;
(3) Counsel failed to object at sentencing and raise on direct appeal the inappropriate application of USSG § 2B3.2 in lieu of another section §2B1.3;
(4) Counsel was ineffective for failing to move to dismiss the charges based upon outrageous conduct orchestrated by the government's... ATF agents as a matter of fundamental fairness and due process... because [there] was no criminal activity until the ATF agents created it;
(5) Trial counsel was ineffective for failing to request an entrapment defense jury instruction for McCall;
(6) Counsel was ineffective for failing to object to the jury instructions which are overbroad and inconsistent with Supreme Court precedent in Bailey v. United States,  U.S. , 116 S.Ct. 501 (1995). McCall is actually, ...