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United States v. Tucker

United States District Court, E.D. Virginia, Richmond Division

April 13, 2015


MEMORANDUM OPINION (Denying 28 U.S.C. § 2255 Motion)

HENRY E. HUDSON, District Judge.

Tracy Mark Anthony Tucker, a former federal inmate proceeding pro se, filed this motion under 28 U.S.C. § 2255 ("§ 2255 Motion, " ECF No. 74) to vacate, set aside, or correct his sentence. In his § 2255 Motion, Tucker demands relief upon the following grounds:

Claim 1 (a) Counsel provided ineffective assistance by "suppressing potential witnesses" (Argument No. 5).[1] (§ 2255 Mot. at 2-3.)
(b) Counsel provided ineffective assistance during the plea bargaining process (Argument No. 6). (Id. at 3.)
(c) Counsel provided ineffective assistance by waiving Tucker's right to challenge the outcome of the suppression hearing (Argument No. 7). (Id. )
Claim 2 The Court erred in denying Tucker's request to withdraw his guilty plea (Argument No. 2). (Id. at 2.)
Claim 3 The Court erred by failing to hold a hearing on Tucker's competence (Argument No. 3). (Id. )
Claim 4 Law enforcement conducted a search and seizure "in violation of Rule 41 of the Federal Rules of Criminal Procedure." (Argument No. 4). (Id. )
Claim 5 The Court erred by failing to inform Tucker of the five-year mandatory minimum sentence, and by erroneously stating that he faced a ten-year maximum (Argument No. 8). (Id. at 3.)

The United States has responded (ECF No. 76). The matter is ripe for judgment.

I. Procedural History

On June 2, 2009, based upon information provided by a witness to a shooting that occurred earlier that day, law enforcement officials obtained a warrant to search Tucker's residence and a Nissan truck. (Crim. Complaint, ECF No. 1, at 1; Presentence Report ("PSR") at ¶ 7.) The witness informed law enforcement that the shooter departed in the Nissan truck that was driven by Tucker. (Id. ) When law enforcement officials arrived at Tucker's residence, Tucker, his girlfriend, Catherine Robinson, and their three children were present. (PSR at 8.) The search of the Nissan truck yielded a loaded firearm, which Tucker admitted belonged to him. (Id at ¶¶ 10-11.)

On September 1, 2009, a grand jury returned an indictment charging Tucker with possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Indictment, ECF No. 9, at 1.) Tucker subsequently filed a motion to suppress (ECF No. 17) challenging the validity of the search warrant. Prior to the suppression hearing, Tucker requested that the Court replace his retained counsel because she was not litigating the case as he desired. ( See, e.g., Oct. 30, 2009 Suppression Hr'g Tr., ECF No. 32, at 9-10.) After hearing from both Tucker and counsel, the Court decided to continue with the suppression hearing but informed Tucker that he had until the day before the start of his trial to retain new counsel, and if new counsel entered an appearance, the Court would continue the trial. (Id. at 10-11.) The Court then heard and denied Tucker's motion to suppress the search warrant. (Id at 30.)

Later that day, Tucker entered a plea of guilty. (Oct. 30, 2009 Plea Hr'g Tr., ECF No. 33, at 17.) On January 13, 2010, over two months after the entry of his guilty plea, Tucker moved to withdraw his plea (ECF No. 29). Tucker also sought removal of his current counsel, John March (ECF No. 31). On January 20, 2010, following a hearing, the Court denied Tucker's motion to withdraw his guilty plea, but granted Tucker's motion to remove March as counsel. (Jan. 20, 2010 Hr'g Tr., ECF No. 40, at 11.)[2] That same afternoon, the Court appointed public defender Carolyn Grady as Tucker's new counsel. (Id. ) Grady then filed a Motion to Reconsider Denial of Motion to Withdraw Plea (ECF No. 43). After hearing extensive argument, the Court denied the motion (March 8, 2010 Order, ECF No. 48, at 1). On March 10, 2010, the Court sentenced Tucker to sixty months of imprisonment. (J. 2, ECF No. 51, at 2.)

Tucker appealed. The United States Court of Appeals for the Fourth Circuit affirmed Tucker's conviction. United States v. Tucker, 424 F.Appx. 244, 245 (4th Cir. 2011). The Fourth Circuit rejected Tucker's argument that this Court erred in denying his motion to withdraw his guilty plea. Id. In so finding, the Fourth Circuit stated that Tucker's "unsupported claim that his attorney or the court pressured him to plead guilty[, ] and that he did not understand the Rule 11 hearing[, ] is at odds with his solemn declarations, under oath, to the contrary at that hearing." Id. at 245-46 (citation omitted). In addition, the Fourth Circuit held that Tucker's sixty-month sentence was both procedurally and substantively reasonable. Id. at 247.

II. Claim 1: Alleged Ineffective Assistance of Counsel

To demonstrate ineffective assistance of counsel, a convicted defendant must show first, that counsel's representation was deficient and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong of Strickland, a convicted 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). The prejudice component requires a convicted defendant to "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, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697.

A. Suppressing a Defense Witness (Claim 1(a))

In Claim 1(a), Tucker alleges that counsel provided ineffective assistance by "suppressing potential witnesses for Defendant, " thus depriving him of evidence that would have led the Court to grant his Motion to Suppress. (Id. at 3, 7.) Tucker directs the Court to a notarized, yet unsworn affidavit[3] from Cathy Robinson, Tucker's girlfriend, and the owner of the home where law enforcement discovered Tucker's firearm. ("Robinson Aff., " ECF No. 74, at 13.) Robinson's affidavit states in sum:

On June 6, 2009 I Cathy Robinson did indeed escort a detective into my home to recover my register firearm, He stated to me that he wanted to run some test. I then escorted him out of my home at no time while I was escorting him out did my kids says anything to the detective. They were playing in the front yard until I told them to go in. I never gave the detective permission to search none of my property

(Robinson Aff. at 1.)[4]

Tucker cannot demonstrate that counsel performed deficiently. "[T]he decision whether to call a defense witness is a strategic decision' demanding the assessment and balancing of perceived benefits against perceived risks, and one to which [w]e must afford... enormous deference.'" United States v. Terry, 366 F.3d 312, 317 (4th Cir. 2004) (alteration in original) (quoting United States v. Kozinski, 16 F.3d 795, 813 (7th Cir. 1994)). Assuming arguendo Tucker requested that counsel use Robinson's testimony, the Court, affording the requisite deference to counsel's professional discretion, presumes that counsel determined that Robinson's testimony would prove harmful, or at least unhelpful, to Tucker's case. Id. Nothing in the record, nor Tucker's § 2255 Motion, suggests any reason for the Court to conclude otherwise. Furthermore, Tucker fails to demonstrate that he desired his counsel to speak with Robinson, or instructed counsel how Robinson's testimony would benefit his case. Moreover, Tucker had ample opportunity to speak directly before the Court during the October 30, 2009 hearing when he first sought new counsel. He also had an opportunity to speak freely to the Court during the January 20, 2010 and February 26, 2010 hearing ...

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