United States District Court, E.D. Virginia, Newport News Division
OPINION AND ORDER
MARK S. DAVIS, District Judge.
This matter is before the Court on a Motion to Vacate, Set Aside, or Correct Sentence, filed by Petitioner Dennis Wayne Rowsey, Jr., ("Petitioner") pursuant to 28 U.S.C. § 2255. ECF No. 62 ("Pet'r's § 2255 Motion"). Petitioner's § 2255 Motion asserts that his conviction should be vacated because his counsel was ineffective in a number of ways. More specifically, Petitioner alleges that counsel was ineffective with respect to Petitioner's decision to enter a guilty plea, during post-plea cooperation, and at sentencing. The Court finds that an evidentiary hearing is unnecessary because the record conclusively demonstrates that Petitioner is not entitled to the relief sought in his § 2255 motion. See R. Governing § 2255 Proceedings in U.S. Dist. Cts. 8(a). For the reasons discussed below, Petitioner's § 2255 motion is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2011, the Federal Bureau of Investigation ("FBI") began investigating a drug trafficking organization headed by Petitioner. Statement of Facts at 1, ECF No. 31. On April 25, 2011, a confidential human source ("CHS 1"), who had interacted with Petitioner since at least October 2010, provided information to the FBI. Id . The information from CHS 1 involved Petitioner's conspiracy with others to distribute and possess with intent to distribute cocaine and cocaine base. Id.
On April 26, 2011, Petitioner contacted CHS 1 by telephone and asked him to bring a digital scale to Petitioner's work location at the Harbour Apartments in Newport News. Id . CHS 1 wore a concealed audio/video recording device during the delivery of the scale. Id . Upon arrival at the Harbour Apartments, Petitioner directed CHS 1 to an empty apartment. Id . Inside that apartment, CHS 1 observed Petitioner and another individual, Perry, with one ounce of powder cocaine. Petitioner stated that he had purchased the cocaine from an associate of Perry for $1, 200. Id . at 2.
In 2011, CHS 1 participated in a series of controlled drug evidence purchases from Petitioner. See id. at 2-3. CHS 1 wore a concealed audio/video recording device during each such operation. See id. On May 19, 2011, CHS 1 purchased one ounce of crack cocaine for $1, 300 from Petitioner at Petitioner's home. Id . at 2. After that purchase, CHS 1 observed that approximately one ounce of crack cocaine and three quarters of an ounce of powder cocaine remained in a cookie tin in Petitioner's kitchen. Id . On May 20, 2011, CHS 1 purchased half an ounce of crack cocaine and half an ounce of powder cocaine for $1, 300 from Petitioner at Petitioner's home. Id . During that purchase, CHS 1 also observed Petitioner sell two grams of crack cocaine to another individual for $200 in Petitioner's kitchen. Id . In addition, CHS 1 observed a.45 caliber Ruger P90 pistol on top of Petitioner's refrigerator. Id . During the operation, Petitioner also purchased five ounces of powder cocaine from an unidentified third party who was also present at Petitioner's home. Id . On June 6, 2011, Petitioner contacted CHS 1 and asked him to accompany Petitioner to meet with several other individuals at a restaurant in Newport News. CHS 1 and Petitioner drove separately to the restaurant that evening to meet with those other individuals. Id . at 3. At the restaurant, CHS 1 observed Petitioner sell one ounce of powder cocaine to another individual. Id . Thereafter, Petitioner invited CHS 1 back to Petitioner's home. Id . At Petitioner's home, CHS 1 observed approximately one ounce of crack cocaine and powder cocaine in the cookie tin in Petitioner's kitchen. CHS 1 also observed that the "pay/owe" dry erase board on the refrigerator had more names on it than CHS 1 had observed on prior occasions. Id . Petitioner stated that he was going to purchase six ounces of powder cocaine later that evening. Id . On June 15, 2011, during a phone call between Petitioner and CHS 1, Petitioner stated that he had obtained half a kilogram of cocaine on June 13, 2011. Id . In addition, Petitioner stated that he had to "re-up" soon because he had sold so much cocaine in the preceding several days. Id.
On June 17, 2011, federal arrest and search warrants were executed on Petitioner and his residence. Id . During the execution of those warrants, law enforcement seized in excess of $34, 000 from a safe located in a false space behind a wall, more than five ounces of cocaine, and two firearms. Id . In total, between 2010 and 2011, Petitioner conspired to distribute and possess with intent to distribute more than 500 grams of cocaine and 280 grams of cocaine base. Id.
On June 19, 2011, Petitioner retained Andrew M. Sacks to represent him in connection with this case. Sacks Affidavit at 1, ECF No. 73. After reviewing "the Arrest Warrant Affidavit in support of the Criminal Complaint, and based upon discussions that [he] recants] having with the prosecutor in the case, as well as Mr. Rowsey, [Mr. Sacks] concluded early on that the evidence against [Petitioner] as to the conspiracy charge under the Criminal Complaint was likely substantial." Id . at 2. Accordingly, Mr. Sacks "attempted to explore with the prosecutor early on in the case a proposed agreed disposition that would include [Petitioner's] cooperation and substantial assistance to mitigate and diminish his potential confinement exposure." Id . However, the prosecutor did not react favorably to Mr. Sacks' initial requests and "ruled out any cooperation or substantial assistance agreement" because the prosecutor did not trust Petitioner based on a belief that Petitioner had lied to the prosecutor and Government agents at the time of his arrest. Id . Nevertheless, Mr. Sacks continued to advocate, with the prosecutor, for a potential agreed disposition that would include Petitioner's cooperation and substantial assistance because Mr. Sacks believed such an agreement would result in the least confinement for Petitioner. Id.
On July 22, 2011, a grand jury in Newport News returned an eight-count Indictment against Petitioner. ECF No. 11. In Count I, the grand jury charged Petitioner with Conspiracy to Possess with Intent to Distribute and Distribution of more than five hundred (500) grams of cocaine and more than 280 grams of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Indictment at 2. In Counts Two through Six, the grand jury charged Petitioner with possession with intent to distribute and distribution of cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1). See id. at 3-7. In Count Seven, the grand jury charged petitioner with maintaining a drug house in violation of 21 U.S.C. 856(a)(2). Id . at 8. In Count Eight, the grand jury charged Petitioner with possession of a firearm in furtherance of a drug trafficking crime, distribution of cocaine and cocaine base. Id . at 9.
Following the indictment, the Government agreed to provide Petitioner with another chance to demonstrate his trustworthiness as a cooperator. Id . Mr. Sacks believed that "having [Petitioner] commence his cooperation prior to any guilty plea would greatly enhance both his credibility with the Government and his chances for a substantial assistance reduction of potential confinement." Id . at 3. Through a series of emails, Mr. Sacks arranged for Petitioner to cooperate with and debrief FBI agents prior to Petitioner entering a guilty plea. Pet'r's § 2255 Mot. at 19. Prior to Petitioner's first debriefing, Mr. Sacks "advised [Petitioner] to tell them the truth and provide information which might induce the U.S. Attorney to offer [Petitioner] a favorable or lenient plea agreement." Id.
On September 20, 2011, Petitioner commenced his cooperation with the Government in an initial debriefing session. Mr. Sacks was present at the beginning of the debriefing between Petitioner and Government agents. Id . The Government provided a proffer letter to Petitioner granting him Kastigar use immunity for any statements made other than admissions of violent crimes. Id . Mr. Sacks advised Petitioner to sign the letter, and Petitioner did so. Id . The FBI agents present at the meeting then began to question Petitioner. Id . at 20. Two minutes later, Mr. Sacks announced that he had to leave to attend another meeting. Id . Petitioner asked Mr. Sacks why he was leaving, to which Mr. Sacks responded "things look like they are going [okay] here, just be sure to tell the truth about everything." Id . During the debriefing, FBI agents asked Petitioner if he knew who killed Jeffrey Summers. Id . Petitioner told the agents that he "did not have any idea about who might have killed Summers." The agents also asked Petitioner about James Talley. Id . More specifically, the agents asked Petitioner if he knew "that [Mr.] Talley had ever hurt or killed anyone, " to which Petitioner responded that he "did not know about any violent crimes done by [Mr.] Talley." Id . The agents arranged for another debriefing on October 4, 2011. Id . at 21.
On October 3, 2011, the Government informed Mr. Sacks that a superseding indictment would add charges for "[continuing criminal enterprise] and an additional firearm for a net increase of 35 mandatory years." Id . at 44. Assistant United States Attorney Eric M. Hurt further informed Mr. Sacks that "[w]hen I originally talked to [Petitioner] I told him these charges would be in the original indictment but at your urging I did not put them in the first indictment." Id.
On October 4, 2011, Petitioner met with FBI agents for a second debriefing. At that debriefing, agents asked Petitioner the same questions about James Talley. Id . at 21. Petitioner again responded that he "did not know of any violent crimes or murders done by [Mr.] Talley." Id.
On October 11, 2011, pursuant to a written plea agreement, Petitioner appeared before United States Magistrate Judge Douglas E. Miller and pleaded guilty to Counts One and Eight of the indictment, charging him, respectively, with Conspiracy to Possess with Intent to Distribute and Distribution of more than five hundred (500) grams of cocaine and more than 280 grams of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). ECF No. 11. During the plea colloquy, Petitioner indicated that he had received a copy of the indictment, reviewed the indictment, and fully discussed all of the charges in the indictment with his attorneys. See Plea Hr'g Tr. at 6, Oct. 11, 2011; Resp. to Pet'r's § 2255 Mot. Ex. A. at 7, ECF No. 76-1. The Court described to Petitioner the elements the United States would have to prove to obtain a conviction under Counts One and Eight. Plea Hr'g Tr. at 7-8; Resp. to Pet'r's § 2255 Mot. Ex. A. at 8-9. Following each explanation, Petitioner indicated that he understood all the elements with respect to each count. See Resp. to Pet'r's § 2255 Mot. Ex. A. at 8-9. However, the Court described the elements required for a conviction under Count Eight as follows:
That in the Eastern District of Virginia you committed a drug trafficking offense which would include the conspiracy described in count one of the indictment, that you knowingly possessed a firearm during and in relation to the commission of the drug trafficking offense or in furtherance of the drug trafficking offense. Possessing a firearm means that you either had a firearm on your person or that it was located in a place where you had the ability to exercise dominion and control over the firearm.
Id. at 9.
During the colloquy, the Court confirmed that Petitioner had read the plea agreement and that his attorney had fully explained the terms of the plea agreement to him. Id . at 12. In addition, the Court confirmed that no one, including Petitioner's attorney and the attorney for the United States, had made "any promise of leniency or any promise of any kind in return for [Petitioner's] guilty plea other than what is contained in [the] written plea agreement." Id . at 15. In response to the Court's thorough inquiry, Petitioner indicated that he had the opportunity to discuss his case in full with his attorney, conferred with Mr. Sacks regarding these matters, and discussed all of the facts of the case with his attorneys. See id. at 16. Petitioner responded affirmatively to the Court's question whether Petitioner was "satisfied that your attorneys have fully considered all of the facts and discussed with you any possible defenses you might have to the charges against you." Id . Thereafter, Petitioner's attorney at the proceeding, Mr. O'Mara, indicated that he had discussed the facts in detail with Petitioner, as had Mr. Sacks, and that both Mr. O'Mara and Mr. Sacks were satisfied that there were no meritorious defenses that Petitioner might raise which, in their opinion, would result in a not guilty verdict. See id. at 20.
Prior to determining Petitioner's plea with respect to each count, the Court read verbatim from the indictment Count One and Count Eight. See id. at 21-23. After the Court read each charge in the indictment, Petitioner pleaded guilty to each charge. Id . In addition, Petitioner confirmed that he pleaded guilty to each charge because he was, in fact, guilty of each offense. Id . at 23. Before accepting Petitioner's guilty plea, the Court determined that Petitioner had reviewed the statement of facts, agreed with all of the facts contained in such document, and did not disagree with, or take exception to, such document. See id. at 24. The Court then accepted Petitioner's plea and continued the matter for sentencing.
The terms of the plea agreement required Petitioner to "cooperate fully and truthfully with the United States, and provide all information known to [Petitioner] regarding any criminal activity as requested by the government." Plea Agreement at 5, ECF No. 30. In connection with that cooperation, Petitioner "agreed that, upon request by the United States, [Petitioner] will voluntarily submit to polygraph examinations to be conducted by a polygraph examiner of the United States' choice." Id . at 6; see also Pet'r's § 2255 Mot. at 21 ("My plea agreement provided that I would cooperate, debrief at Government request, take a polygraph test if the Government requested one...."). Furthermore, the plea agreement noted that "(Petitioner] is hereby on notice that (Petitioner] may not violate any federal, state, or local criminal law while cooperating with the Government, and that the Government will, in its discretion, consider any such violation in evaluating whether to file a motion for a downward departure or reduction of sentence." Plea Agreement at 6. The plea agreement expressly stated that "nothing in this agreement prevents the Government in any way from prosecuting the defendant should the defendant provide false, untruthful, or perjurious information or testimony....Id. at 7. In addition, the plea agreement was "conditioned upon the defendant providing full, complete and truthful cooperation." Id . Under the plea agreement, if Petitioner,
commit[ed] or attempt[ed] to commit any additional federal, state or local crimes, or intentionally [gave] materially false, incomplete, or misleading testimony or information, or otherwise violat[ed] any provision of this agreement, then: (a) The United States will be released from its obligations under this agreement, .... The Defendant, however, may not withdraw the guilty plea entered pursuant to this agreement; (b) [Petitioner] will be subject to prosecution for any federal criminal violation, including, but not limited to, perjury and obstruction of justice...
Id. at 10-11; see also Pet'r's § 2255 Mot. at 21 ("The agreement provided that if I gave false, incomplete or misleading information to the Government during cooperation, the plea agreement could be cancelled by the Government and all information could be used against me that I had provided.").
On October 14, 2011, Petitioner met with agents in a third debriefing session. Counsel for Petitioner was not present at that debriefing. Pet'r's § 2255 Mot. at 21. At the debriefing, Petitioner "told the agents that [Mr.] Talley had admitted killing Summers during a conversation with me and told them [Mr.] Talley had killed Summers in order to rob him of drugs and money kept at Summers['s] house." Pet'r's § 2255 Mot. at 22. Petitioner has admitted that his statement that Mr. Talley told him that he had killed Summers was not, in fact, true. See Competency Hr'g Tr. at 65-67, 88-89, Sept. 13, 2013; Resp. to Pet'r's § 2255 Mot. Ex. A. at 30-32, 53-54. In light of the inconsistency between that statement and Petitioner's statements in prior debriefings, the agents asked that Petitioner undergo a polygraph examination.
On October 17, 2011, Petitioner submitted to a polygraph examination. Mr. Sacks was not present at the examination. Pet'r's § 2255 Mot. at 22. After the polygraph examination, the examiner left the room. Competency Hr'g Tr. at 67; Resp. to Pet'r's § 2255 Mot. Ex. A. at 32. Upon returning, she indicated that Petitioner "had some problems with answering some of the questions." Resp. to Pet'r's § 2255 Mot. Ex. A. at 32. Petitioner did not hesitate in immediately indicating that his statement that Mr. Talley had confessed to him was not accurate. Id . The examiner then asked Petitioner to give a written statement that he lied about Mr. Talley's purported confession to him. Pet'r's § 2255 Mot. at 23. The examiner prepared a written statement stating, in part, that "[t]he conversation between myself and [Mr.] Talley in which I previously reported is not true. [Mr.] Talley did not confess to me any involvement in the shooting." Id . at 48; see Resp. to Pet'r's § 2255 Mot. Ex. A. at 33. Petitioner signed that written statement. Resp. to Pet'r's § 2255 Mot. Ex. A. at 33. Following the polygraph examination, Mr. Sacks attempted to convince the Government to retest Petitioner; however, the Government rejected any further cooperation or debriefing with Petitioner. Pet'r's § 2255 Mot. at 23.
On November 11, 2011, the Government filed a motion to cancel the plea agreement with Petitioner based on Petitioner's violation of the plea agreement through his false statements regarding Mr. Talley. ECF No. 34. Before the scheduled hearing on that motion, Petitioner filed a motion for a competency evaluation. ECF No. 38. After conducting a hearing, the Court granted Petitioner's motion and ordered a competency evaluation. ECF No. 43. A clinician with the Bureau of Prisons evaluated Petitioner and submitted a written report of that evaluation to the Court. ECF No. 46. The report included a finding that Petitioner was competent to stand trial and his apparent mental impairment was attributable to malingering. Thereafter, on June 12, 2012, the Government filed a second motion to cancel Petitioner's plea agreement. ECF No. 47. On September 13, 2012, after conducting a hearing, the Court granted the Government's motion and cancelled Petitioner's plea agreement based on his breach of that agreement.
As a result of the cancellation of the plea agreement, the Government indicated to Mr. Sacks that it intended to file a superseding indictment against Petitioner. See Pet'r's § 2255 Mot. at 32, 50. The Government indicated such superseding indictment would include a continuing criminal enterprise charge and an additional firearm charge-consistent with the Government's earlier stated intent to file a superseding indictment, see Pet'r's § 2255 Mot. at 44-as well as perjury and obstruction of justice charges, id. at 50. The additional charges would result in a net increase of thirty five mandatory years. Pet'r's § 2255 Mot. at 44 (Government stating in October 2011 e-mail that "[t]he superseding indictment will add CCE and an additional firearm for a net increase of 35 mandatory years.").
On October 31, 2012, the Probation Office filed a presentence investigation report ("PSR") with the Court. ECF No. 49. Initially, Petitioner objected to being attributed with the drug weights calculated by the probation officer and argued that the drug weights should be lower. However, through negotiations with the Government, Mr. Sacks obtained a proposed resolution from the Government through an addendum to the plea agreement in which the Government would agree not to further prosecute Petitioner for the specific conduct described in the indictment or statement of facts, or seek additional charges as a result of Petitioner's false statements to law enforcement and before the Court, if Petitioner agreed that the sentencing guidelines stated in the October 31, 2012 PSR were correct. See Addendum to Plea Agreement, ECF No. 58; Pet'r's § 2255 Mot. at 50. Mr. Sacks discussed the proposed addendum with Petitioner and advised him to accept the proposed addendum and drop his objections to the PSR to avoid a twenty-five-year consecutive sentence. Pet'r's § 2255 Mot. at 32. Thus, Petitioner withdrew his prior objections to the calculation of drug weights in the PSR. See Def.'s Position with Respect to Sentencing Factors, ECF No. 54. On January 3, 2013, the Court sentenced Petitioner to a total term of imprisonment of 295 months. The Court sentenced Petitioner to a 235-month term on Count One and a 60-month term on Count Eight, to be served consecutively.
Petitioner timely filed the instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. In addition, Petitioner filed a Memorandum of Law in support of his motion. ECF No. 64. After receiving an extension of time from the Court, ECF No. 71, the Government filed its response, ECF No. 76. Petitioner untimely filed a reply. Accordingly, Petitioner and the Government have fully briefed the matter and it is now ripe for review.
II. STANDARD OF REVIEW FOR § 2255 MOTION
A federal prisoner, in custody, may collaterally attack his sentence or conviction by moving the district court "to vacate, set aside or correct the sentence" pursuant to 28 U.S.C. § 2255. To obtain such relief, a petitioner bears the burden of proving that his sentence or conviction was "imposed in violation of the Constitution or laws of the United States, " that the district court "was without jurisdiction to impose such sentence, " that the sentence exceeds "the maximum authorized by law, " or that the sentence or conviction is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a). To obtain relief, a petitioner must prove the asserted grounds for relief by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Because a § 2255 motion "is ordinarily presented to the judge who presided at the original conviction and sentencing... the judge's recollection of the events at issue may enable him summarily to dismiss a § 2255 motion." Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977).
A § 2255 motion is, in essence, a statutory federal habeas corpus action that collaterally attacks a sentence or conviction through the filing of a new proceeding, as contrasted with a direct appeal. See In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) ("(Section] 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.'" (quoting Davis v. United States, 417 U.S. 333, 343 (1974))). The existence of the right to pursue a collateral attack does not displace a direct appeal as the ordinary method for challenging a conviction or sentencing determination. United States v. Allgood, 48 F.Supp.2d 554, 558 (E.D. Va. 1999). To the contrary, with limited exceptions, a petitioner advancing new claims asserted for the first time in a § 2255 motion "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1981).
The "higher hurdle" that applies to claims advanced for the first time in a § 2255 action exists because, once a defendant's opportunity to pursue a direct appeal has been waived or exhausted, there is "a final judgment [that] commands respect." Id . at 164-65. Accordingly, the doctrine of procedural default generally prevents a district court from reaching the merits of § 2255 claims that were not raised on direct appeal unless a petitioner can show: (1) "cause" excusing the failure to directly appeal such alleged errors; and (2) "actual prejudice resulting from the errors of which he complains." United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1992). "The existence of cause for a procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel.'" United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (quoting Mikalajunas, 186 F.3d at 493). As for prejudice, it is not enough for a petitioner to demonstrate "a possibility of prejudice, " but rather, he must show that errors "worked to his actual and substantial disadvantage, infecting his entire [case] with error of constitutional dimensions." Frady, 456 U.S. at 170.
Alternatively, a petitioner may overcome the procedural default bar in limited circumstances by demonstrating that "a miscarriage of justice would result from the refusal of the court to entertain the collateral attack, " such as where a petitioner can demonstrate actual innocence. Mikalajunas, 186 F.3d at 494. Actual innocence, however, "means factual innocence, not mere legal insufficiency" of a conviction. Bousley v. United States, 523 U.S. 614, 623-24 (1998); see Mikalajunas, 186 F.3d at 494 (indicating that a petitioner must demonstrate "actual factual innocence"). A petitioner "asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
A § 2255 petitioner need not, however, overcome the procedural default bar to advance a freestanding claim of ineffective assistance of counsel, which is properly asserted for the first time in a § 2255 motion. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) ("[I]t is well settled that a claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance." (quoting United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992))). Such rule exists because the Federal Rules Governing § 2255 Proceedings permit expansion of the record, which is generally unavailable on direct appeal and often necessary to properly resolve an ineffective assistance claim. See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010) (quoting Massaro v. United States, 538 U.S. 500, 504-06 (2003)) ("[I]n most cases a motion brought under 2255 is preferable to ...