United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (Denying Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255)
HENRY E. HUDSON, District Judge.
Petitioner Jack Rosga ("Rosga"), 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. §§ 1961-1968 (Count One), and Conspiracy to Commit Violence in Aid of Racketeering, in violation of 18 U.S.C. § 1959(a)(6) (Count Two). On April 8, 2011, Rosga was sentenced to 240 months on Count One and 36 months on Count Two, to run concurrently with the sentence imposed on Count One. Rosga's convictions were affirmed by the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") on August 2, 2012. Werth v. United States, 493 F.Appx. 361, 367-68 (4th Cir. 2012). His petition for certiorari was denied by the United States Supreme Court on December 3, 2012. Rosga is currently serving his sentence at the Federal Correctional Institute Victorville in Victorville, California.
The case is presently before the Court on Rosga's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion, " ECF No. 1040), which was timely filed. The United States has filed a memorandum supporting its position. Although the centerpiece of Rosga's petition is a claim of ineffective assistance of counsel, he also challenges the constitutionality of judicial fact finding in applying certain sentencing guideline enhancements. (Pet'r's Mem. Supp. § 2255 Mot., ECF No. 1041.) The undercurrent of his petition, however, is a re-argument of a number of issues exhaustively addressed by this Court and rejected by the Fourth Circuit in its unpublished per curium opinion of August 2, 2012. See Werth, 493 F.Appx. at 365-70.
This Court's analysis begins with recognition of well-settled principle that unless a claim alleges a lack of jurisdiction or constitutional error, the scope of collateral review is limited. Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). As Chief Justice Rehnquist noted in Brecht v. Abrahamson, "the writ of habeas corpus has historically been regarded as an extraordinary remedy, a bulwark against convictions that violate fundamental fairness.... Accordingly, it hardly bears repeating that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." 507 U.S. 619, 633-34 (1993) (internal quotation marks and citations omitted). Appropriately then, errors of law do not typically provide a basis for habeas relief under 28 U.S.C. § 2255 unless it constitutes "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Timmreck, 441 U.S. 780, 783 (1979).
Rosga's first claim focuses on the mechanics of the sentencing process, specifically a sentencing enhancement for what he argues to be fact-based relevant conduct. Specifically, Rosga contends:
Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151 (June 17, 2013), requires a vacatur of the defendant's sentence, as the cross-referencing of defendant's purported "relevant conduct" under United States Sentencing Guidelines ("U.S.S.G.") § 2A2.1 for attempted murder, a 33 level increase, required that the jury find these de facto elements established beyond a reasonable doubt.
(Pet'r's Mem. Supp. Mot. § 2255 at 3-4.)
Rosga correctly construes Alleyne as recognizing the Sixth Amendment implications of increasing the floor, as opposed to the ceiling, of sentencing exposure. ( Id. at 4) (citing Alleyne, 133 S.Ct. at 2160-2161.) In particular, Rosga contends that the sentencing enhancement resulting from the cross reference to attempted homicide involved factual issues that should have been presented to the jury for a determination under a reasonable doubt standard.
Rosga's construction of Alleyne, however, extends beyond the contours of the Supreme Court's reasoning. Indeed, Alleyne has no application to the facts at hand. In Alleyne, the Supreme Court held that "any fact  increase[ing] the mandatory minimum is an element that must be submitted to the jury." Id. at 2155 (internal quotation marks omitted). The court in Alleyne further explained that "[a]ny fact that, by law, increases the penalty for a crime is an element that must be submitted to the jury and found beyond a reasonable doubt." Id. (citing Apprendi v. New Jersey, 530 U.S. 466, 483 n.10 (2000)). Under Rosga's reasoning, however, any aggravating fact potentially lengthening a sentence within an established statutory range constitutes an element of the crime. This assertion is based on a misconstruction of the holding in Alleyne. As the Fourth Circuit noted in the recent case of United States v. Benn, "[f]actual findings made for purposes of applying the U.S. Sentencing Guidelines, which influence the sentencing judge's discretion in imposing an advisory guideline sentence and do not result in an imposition of a mandatory minimum sentence, do not violate the rule in Alleyne." 572 F.Appx. 167, 2014 WL 2109806 at *11 (4th Cir. May 21, 2014) (quoting United States v. Ramírez-Negron, 751 F.3d 42, 48 (1st Cir. 2014)). Assuming arguendo that Alleyne has retroactive application to the judgment in Rosga's case, the claim has no merit and will be dismissed.
Rosga's second claim stands on equally tenuous footing. Premised on the same logic and authority advanced in support of his first claim, Rosga contends that the trial court's application of a four-level enhancement for his leadership role pursuant to U.S.S.G. § 3B1.1(a) violated his Sixth Amendment right to a jury trial. (Pet'r's Mem. Supp. § 2255 Mot. at 8.) Rosga argues that the factual findings necessary to impose the enhancement required a specific jury finding. The Court disagrees with Rosga's interpretation of Alleyne in this context as well.
Rosga's third claim is closely allied with Claims One and Two. Positing that the sentencing enhancements addressed in the first two claims were unconstitutionally applied, Rosga argues that this Court must now revisit its finding as to the 18 U.S.C. § 3553(a)(6) factors, namely that any sentencing disparity among members of the Outlaws motorcycle organization was warranted. (Pet'r's Mem. Supp. Mot. § 2255 at 8-12.) This argument, however, is premised on a finding that the sentencing enhancements were applied in violation of his alleged Sixth Amendment right to factual findings by a jury. As discussed in detail above, this argument is based on a misconstruction of the Supreme Court's holding in Alleyne. Consequently, this claim lacks merit and will be dismissed.
Rosga's final two claims are cloaked as allegations of ineffective assistance of trial counsel. On close examination, however, the overarching theme of these claims is overzealous prosecutorial tactics and outrageous governmental conduct. ( Id. at 12-18.) In his view, trial counsel should have focused more attention on the investigative strategy employed by special agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") which, he contends, crossed constitutional boundaries. Rosga believes that his trial counsel should have more aggressively challenged the government's conduct. Given the strength of the government's case, however, it is doubtful that this diversionary tactic would have had any likelihood of success.
The standard of review for petitions alleging ineffective assistance of counsel is well established in 28 U.S.C. § 2255 jurisprudence. To prevail, a petitioner must first show that counsel's representation was deficient, and second, that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficiency-performance prong of Strickland, a 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). As to prejudice, a defendant must "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, the Court need not 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 ...