United States District Court, E.D. Virginia, Alexandria Division
LEONIE M. BRINKEMA, District Judge.
Daniel Charles Williams ("Williams" or "movant") has filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody ("Motion to Vacate") in which he alleges that his Criminal Justice Act attorney, Dontae LaMont Bugg ("Bugg" or"counsel"),  provided him with ineffective assistance in multiple respects and that his guilty plea was involuntary, and therefore, void.
Specifically, in Ground One he alleges that Bugg was ineffective by misleading him about the sentence he faced if he accepted the plea offer and by failing to investigate the facts and prepare a defense thereby forcing movant to "take a plea deal." Mot. 28 U.S.C. § 2255 Vacate, Set Aside, or Correct Sentence ("Mot. to Vacate") 5. He also claims that counsel did not object to "enhancements, search [sic I, or warrants" and did not file motions to suppress, "particularly from the Search [sic I and GPS tracking device." Id . In Ground Two lie appears to attack the voluntariness of his guilty plea by arguing that he entered the plea on his attorney's promise that he would receive an 87-month sentence and was never made aware of the statutory ten-year mandatory minimum sentence he faced. Id. at 6. In Ground Three, he alleges that although he asked Bugg to file an appeal, which his counsel promised to file, no appeal was filed. Id. at 8. Lastly, in Ground Four he attacks the legality of the alleged warrantless use of a GPS tracking device, the warrantless stop and search of his car, and the lack of adequate probable cause for the car search, which he claims was "based on the word of an unproven informant." Id. at 9. For these reasons, he argues in Ground Four that all evidence obtained from these allegedly illegal activities should have been suppressed. Id.
The government has filed a Response To Defendant's Motion To Vacate Under 28 U.S.C. § 2255 ("Response") to which it attached an affidavit from Bugg and a copy of the warrant and supporting affidavit for the tracking device. Movant was given 30 days to file any reply, but did not file one.
In August 2011, an individual who had been arrested in Loudoun County, Virginia on state drug charges, began to cooperate with law enforcement. Resp. Deffs Mot. to Vacate ("Gov't Resp.") Ex. 2, Aff. Sup. Install. and Monitor. Tracking Device ¶¶ 9-10. Identified as C1-1, this person identified Williams as a kilogram level cocaine trafficker, explaining that Williams regularly travelled to the New York City - New Jersey area to obtain cocaine. Id . ¶ 10. After making several controlled buys from Williams through Williams's co-conspirators, on November 2, 2011, C1-1 succeeded in introducing an undercover officer to Williams, from whom the officer made a two-gram purchase of cocaine. Id . ¶¶ 11-13. Further investigation developed a second cooperating source, C1-2, whose information corroborated the information of C1-1 as to Williams's drug dealing. Id . ¶¶ 14-15.
On February 15, 2012, court orders were issued pursuant to 18 U.S.C. §§ 2703(c)(1)(A), 2703(d), and 3122(a)(1) authorizing disclosure of location-based services, installation of a pen register and a trap and trace device, and disclosure of telecommunication records for a cellular phone identified by the cooperators as the one used by Williams. Id . ¶ 16. On March 16, 2012, a search warrant and order authorizin2, disclosure of location-based services was issued. Id.
Using these authorized surveillance methods, agents tracked Williams's vehicle travelling to New Jersey for short trips on February 18-19, 2012, id., March 22-23, 2012, id. ¶ 21, and March 29, 2012, id. ¶ 22. To improve their ability to surveil Williams, on April 5, 2012, agents applied for and received an order authorizing the installation and monitoring of a tracking device which was installed on Williams's blue Honda Civic. Gov't Resp. Ex. 2, Tracking Warrant.
On April 17, 2012, the tracking device showed the blue Honda travelling south on Interstate 95 in New Jersey. Aft'. Supp, Crim. Compl. and Arrest Warrant ¶ 17. The car was stopped in Maryland, and after a narcotics detection dog alert on the car, a search uncovered 1, 200 grams of cocaine under the front passenger seat. Id . After being advised of his Miranda rights, Williams admitted that he drove to New Jersey on April 15 and met with his cocaine supplier in Newark the following day to obtain the 1, 200 grams of cocaine, for which he paid 540, 000.00. Id . He also admitted making similar trips in the past and selling cocaine in "8 ball" (3.5 gram) quantities to customers in the Loudoun County, Virginia. area. Id.
Williams was arrested and charged with conspiracy to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(x)(1). On July 20, 2012, after he had been indicted on the conspiracy charge, Williams entered a guilty plea to the conspiracy. Under the terms of his plea agreement, the government agreed not to file an information under 21 U.S.C. § 851, which would have increased the mandatory minimum sentence to 20 years imprisonment. Plea Agmt. ¶ 10. Williams was sentenced on October 15, 2012 to the statutory mandatory minimum sentence of 120 months incarceration followed by five years of supervised release, among other sanctions. On March 19, 2013, Williams filed a pro se motion for leave to file am appeal out of time. That appeal was summarily dismissed. See Order, United States v. Williams, No. 13-4225 (4th Cir. Dec. 19, 2013). On May 15, 2014, Williams filed this Motion to Vacate.
A. Standard of Review
Under 28 U.S.C. § 2255, a federal prisoner may collaterally attack a conviction or sentence that was imposed in violation of the United States Constitution or laws, where the court lacked jurisdiction to impose the sentence, where the sentence was in excess of the maximum authorized, or where the sentence or conviction is otherwise subject to collateral attack. To prevail on a § 2255 motion, a movant bears the burden of proving his grounds for relief by a preponderance of the evidence. Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967).
Relief under § 2255 is designed to correct for fundamental constitutional. jurisdictional. or other errors, and it is therefore reserved for situations in which failing to grant relief would otherwise "inherently result[ I in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Moreover, a motion pursuant to § 2255 "may not do service for an appeal, " and claims that have been waived by a failure to appeal are therefore procedurally defaulted unless the movant can show cause and actual prejudice. United States v. Frady, 456 U.S. 152, 165-67 (1982); United States v. Mavbeck. 23 F.3d 888 . 891-92 (4th Cir. 1994) (applying the Frady cause and prejudice standard to unappealed guilty pleas). An exception applies, however, when a defendant brings a claim of constitutionally ineffective assistance of counsel, which can be raised in a collateral attack on his conviction of sentence. See United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998); United States v. DeFusco, 949 F.2d 114, 120-121 (4th Cir. 1991).
B. Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, Williams must satisfy the two-pronged test set forth in Strickland v. Washington. 466 U.S. 668 (1984), which requires a showing of both deficient performance by counsel and prejudice to the defendant resulting from that deficient performance. Because it "is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, " and because a wide range of legitimate defense strategies are possible in a given case, "scrutiny of counsel's performance must be highly deferential." Id. at 689. Moreover. Williams must make an additional showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694: see also id. ("A reasonable probability is a probability sufficient to undermine confidence in the outcome, "). In this context, where Williams pleaded guilty to the offense charged, that means "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hooper v. Garraght 845 F.2d 471, 475 (4th Cir. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
C. Counsel's Alleged Ineffective Assistance
In Ground One, Williams alleges that his counsel was ineffective in four respects. First, he claims counsel "misled" him as to the possible sentence he faced with his guilty plea. Mot. to Vacate 5. In his affidavit attached to his Motion to Vacate, Williams states, "Mr. Bugg informed me that I either go to trial or enter a plea bargain and receive 87 months.... What prompted me to plead guilty was the promise of a sentence of 87 months." Williams Aff.
Regardless of what his counsel may have said concerning the possible sentence, in the Rule 11 plea colloquy Williams acknowledged understanding that no matter what his attorney may have said as to a possible sentence, no such statements were binding on the Court and that Williams could not withdraw his plea if the sentence were different from what he was expecting based on any statement by his counsel.
THE COURT: Now, I'm going to assume that you've talked with Mr. Bugg a great deal about the final punishment or sentence you might get in this case. Have you done that?
THE DEFENDANT: Yes.
THE COURT: Has he given you some estimates as to what kind of a final sentence he thinks you ...