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 four motions filed by Petitioner Darrell Walter Holmes ("Petitioner"). First, Petitioner moves to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255. Petitioner's § 2255 motion alleges that his counsel was ineffective "during the pretrial, plea, trial, sentencing and direct appeal process, " and that his "conviction and sentence are violative of the First, Second, Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution." Pet'r's § 2255 Mot. at 4-5, ECF No. 96. Second, Petitioner requests an evidentiary hearing, so that Petitioner "can prove the allegations [in his § 2255 motion]." Id. at 20. Third, Petitioner requests the opportunity to conduct discovery. Id . Fourth, Petitioner requests that counsel be appointed to represent him in the evidentiary hearing. Id. at 22. For the reasons discussed below, the Court DENIES all of Petitioner's motions.
I. FACTUAL AND PROCEDURAL BACKGROUND
From 1999 to 2002, Petitioner was stationed at the Yokota Air Base in Japan, where he was on active duty with the United States Air Force. While stationed in Japan, at certain times, Petitioner cared for his wife's daughter on the evenings that his wife attended night classes. On two separate occasions, Petitioner forced his stepdaughter, who was between five and seven years old, to perform oral sex on him. In 2007, Petitioner was charged with a criminal violation of the Uniform Code of Military Justice, but such charge was dismissed due to the statute of limitations.
In April 2008, a grand jury in the Eastern District of Virginia indicted Petitioner, charging him with two counts of aggravated sexual abuse of a minor, in violation of 18 U.S.C. § 2241(c) and 7. In proceedings with respect to such charges, Mr. Walter Dalton of the Office of the Federal Public Defender represented Petitioner. In addition, Mr. Larry Dash assisted Mr. Walton in filing various motions and representing Petitioner in various hearings. After Mr. Dalton filed several pretrial motions on Petitioner's behalf, including a motion to dismiss for lack of jurisdiction, the Government moved to dismiss the charges against Petitioner in May 2008.
In November 2008, after Petitioner's administrative discharge from the United States Air Force, a grand jury again indicted Petitioner and charged him with two counts of aggravated sexual abuse of a minor, in violation of 18 U.S.C. § 2241(c) and 7. Mr. Dash was appointed to represent Petitioner in that matter, which was assigned to United States District Judge Robert G. Doumar of this Court. After Judge Doumar denied several pretrial motions filed by Mr. Dash, including motions to dismiss the charges against Petitioner and to suppress incriminating statements, Petitioner entered a conditional plea to the offenses. On the date that Petitioner appeared for sentencing, Judge Doumar reversed his earlier denials of Petitioner's pretrial motions and dismissed without prejudice the charges against Petitioner.
On December 7, 2009, a grand jury once again indicted Petitioner on the same charges. Mr. Dash was again appointed to represent Petitioner, and Petitioner's case was assigned to this Court. Mr. Dash filed various pretrial motions to dismiss the charges against Petitioner and to suppress Petitioner's incriminating statements, which the Court denied. However, rather than pleading guilty, as he had done in the previous matter before Judge Doumar, Petitioner "ultimately decided not to plead guilty... and to proceed to trial." Pet'r's Reply Br. at 8, ECF No. 107.
On March 22, 2010, the day before trial was scheduled to commence, the Government filed a motion in limine to exclude the testimony of an expert witness, Dr. Ofshe, disclosed by Mr. Dash on March 19, 2010. The Government alleged that Mr. Dash's notice of the expert was untimely and, in any event, failed to comply with Rule 16(b)(1)(C) of the Federal Rules of Criminal Procedure. The Court granted the Government's motion and excluded the expert testimony. At the conclusion of Petitioner's four-day jury trial, the jury found Petitioner guilty on both counts.
Petitioner appealed his conviction to the United States Court of Appeals for the Fourth Circuit, challenging the Court's denial of his pretrial motions to dismiss and to suppress his incriminating statements. Petitioner also appealed the Court's granting of the Government's motion in limine to exclude his expert witness. On February 29, 2012, in a published opinion, the Fourth Circuit affirmed Petitioner's conviction, United States v. Holmes, 670 F.3d 586 (4th Cir. 2012). On October 9, 2012, the United States Supreme Court denied Petitioner's petition for a writ of certiorari. Holmes v. United States, 133 S.Ct. 426 (Oct. 9, 2012).
Petitioner filed his § 2255 motion and supporting memorandum on August 22, 2013. ECF Nos. 96, 97. On November 26, 2013, the Government filed a motion to compel Mr. Dash to file an affidavit responding to Petitioner's ineffective assistance claims, ECF No. 100, which the Court granted on December 13, 2013, ECF No. 104. Mr. Dash filed his affidavit on January 10, 2014. ECF No. 105-1. The Government filed its response to Petitioner's motion on January 21, 2014. ECF No. 106. Petitioner filed his reply brief on February 6, 2014. ECF No. 107. Accordingly, this matter is ripe for review.
II. STANDARD OF REVIEW
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." 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). 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, 332-33 (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 "usual and customary method of correcting trial errors." United States v. Allgood, 48 F.Supp.2d 554, 558 (E.D. Va. 1999). On 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). Accordingly, a § 2255 collateral challenge "may not do service for an appeal." Id. at 165.
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 federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural default." Dretke v. Haley, 541 U.S. 386, 393-94 (2004).
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. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010); see United States v. Allen, 491 F.3d 178, 191 (4th Cir. 2007) (indicating that ineffective assistance of counsel claims "are normally raised before the district court via 28 U.S.C. § 2255").
The Sixth Amendment to the Constitution of the United States provides that "the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The Supreme Court of the United States has interpreted the right to counsel as providing a defendant "the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)) (emphasis added). To obtain relief based on an allegation of ineffective assistance a petitioner must establish both that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) counsel's inadequate performance caused the petitioner prejudice. Id. at 687-88. "[U]nsubstantiated and largely conclusory statements" are insufficient to carry a petitioner's burden as to the two prongs of the Strickland test. United States v. Turcotte, 405 F.3d 515, 537 (7th Cir. 2005).
When evaluating counsel's performance under the first prong of Strickland, courts "must be highly deferential." Strickland, 466 U.S. at 689; see Kimmelman v. Morrison, 477 U.S. 365, 381-82 (1986) (discussing the "highly demanding" Strickland standard). To establish constitutionally deficient performance, a petitioner must demonstrate that his lawyer "made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Such a showing must go beyond establishing that counsel's performance was below average, since "effective representation is not synonymous with errorless representation." Springer v. Collins, 586 F.2d 329, 332 (4th Cir. 1978); see Strickland, 466 U.S. at 687. As it is all too easy to challenge an act, omission, or strategy, once it has proven unsuccessful, "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. Courts should therefore "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.
In conducting a hindsight evaluation of counsel's performance, a court must recognize that there "are countless ways to provide effective assistance in any given case" and that "[e]ven the best criminal defense attorneys would not defend a particular client in the same way." Id . If defense counsel has made an adequate investigation into the facts and potential lines of defenses, "the strategic choices made as a result will seldom if ever be found wanting." Id. at 681 (internal quotation marks omitted). Accordingly, the difficulty in overcoming the general presumption that defense counsel provided effective assistance is even greater where counsel's actions required a strategic "assessment and balancing of perceived benefits against perceived risks" - such strategic decisions must be afforded "enormous deference.'" United States v. Terry, 366 F.3d 312, 317 (4th Cir. 2004) (quoting United States v. Kozinski, 16 F.3d 795, 813 (7th Cir. 1994)).
The second prong of Strickland requires a petitioner to "affirmatively prove prejudice, " which requires a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 693-94. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Court applies a slightly modified prejudice standard when a petitioner alleges ineffective assistance associated with the entry of a guilty plea, requiring the petitioner to demonstrate that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). If the Petitioner fails to prove either of the two prongs of the Strickland test, the Court need not evaluate the other prong of the test. United States v. Roane, 378 F.3d 382, 404 (4th Cir. 2004).
Petitioner advances three grounds supporting his § 2255 motion. Grounds One and Two allege that Petitioner's counsel was ineffective "during the pretrial, plea, trial, sentencing and direct appeal process." Pet'r's § 2255 Mot. at 4, ECF No. 96. Ground Three alleges that Petitioner's "conviction and sentence are violative of ...