United States District Court, E.D. Virginia, Alexandria Division
LIAM O'GRADY, District Judge.
This matter comes before the Court on Petitioner Rafael Parada-Mondoza's Motion to Vacate under 28 U.S.C. § 2255. Dkt. No. 372. For the reasons stated herein, and for good cause shown, the motion is DENIED.
This case arose out of the acts of three Mara Salvatrucha, also known as MS-13, gang members, including Petitioner. On or about December 1, 2007, Petitioner and his co-defendants conspired to murder a rival gang member in order to gain entrance to or maintain or increase their position in MS-13. On December 2, 2007, the defendants murdered one rival gang member and attempted to murder another. Throughout 2007 until about March 14, 2008, defendants also conspired with other gang members to distribute 500 grams or more of cocaine.
On December 18, 2008, the defendants were charged in a seven-count superseding indictment. Dkt. No. 191. Petitioner was charged with conspiracy to commit murder in aid of racketeering, murder in aid of racketeering, attempted murder in aid of racketeering, use of a firearm during the commission of a crime of violence resulting in death, being an illegal alien unlawfully in possession of a firearm, and conspiracy to distribute cocaine. Id.
On May 26, 2009, a jury trial commenced, and on June 11, 2009, the jury found Petitioner guilty of all counts on which he was charged. Dkt. No. 281. On October 21, 2009, the Court sentenced Petitioner to two consecutive terms of life imprisonment for counts two and four, 120 months imprisonment for counts one, three, and six, and 240 months imprisonment for count seven. Dkt. No. 313.
On October 21, 2009, Petitioner filed a timely notice of appeal to the Fourth Circuit. Dkt. No. 307. In an unpublished opinion, the Fourth Circuit affirmed. United States v. Perez-Amaya, 453 F.App'x 302 (4th Cir. 2011). On May 13, 2013, Petitioner filed the motion to vacate currently before the Court. Dkt. No. 372.
Petitioner seeks to vacate his sentence pursuant to 28 U.S.C. § 2255. A petitioner is entitled to relief under 28 U.S.C. § 2255 only in the extraordinary event that he demonstrates either: (1) a lack of jurisdiction by the convicting court; (2) constitutional error; or (3) legal error so grave as to be "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (citation and internal quotation marks omitted). It is well settled that bare, conclusory allegations are insufficient to entitle a petitioner to relief under § 2255. See, e.g., United States v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013), cert. denied, 135 S.Ct. 47 (2014).
Petitioner seeks relief based on alleged ineffective assistance of counsel, an alleged violation of the concurrent sentence doctrine, the indictment's alleged failure to provide him with notice, his being sentenced based on facts not presented in the indictment, and the Court's alleged error in excluding a video from evidence and in admitting expert testimony. The Court will examine each of these arguments in turn.
I. Petitioner Cannot Show that Defense Counsel's Assistance Was Ineffective.
Petitioner asserts that he received ineffective assistance of counsel based upon six grounds, alleging defense counsel's failure to: (1) secure a favorable plea; (2) object to the admissibility of a video; (3) object to the admissibility of expert testimony; (4) object to the sufficiency of the evidence on the conspiracy charge; and (5) conduct a thorough background investigation. Dkt. No. 392.
The Supreme Court articulated a two-part standard for evaluating claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). The first prong requires a showing that counsel failed to provide reasonably effective assistance, that is, that counsel's conduct fell below an objective standard of reasonableness in light of the circumstances at the time. Id. at 687-88. This prong presents a high burden because the Court must "presume that the defendant's counsel rendered objectively effective performance." United States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007). The second prong requires the defendant to prove prejudice by "show[ing] that there is a reasonable probability that, but for counsel's ...