United States District Court, Eastern District of Virginia, Alexandria Division
LIAM O'GRADY, UNITED STALES DISTRICT JUDGE
This matter comes before the Court on Petitioner Jorge Parada's Motion to Vacate under 28 U.S.C. § 2255. Dkt. No. 380. The motion has been fully briefed by the parties. On March 4, 2015, the Court held an evidentiary hearing to determine whether Petitioner's trial counsel had communicated the government's plea offers to him. For the reasons set forth below, as well as those stated in open court, the motion will be 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's 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 co-defendants murdered a rival gang member and attempted to murder another. Throughout 2007 until about March 14, 2008, the defendants, including Petitioner, also conspired with other gang members to distribute 500 grams or more of cocaine.
On December 18, 2008, the defendants were charged in a third superseding indictment.' Dkt. No. 191. Petitioner was charged with two counts: conspiracy to commit murder in aid of racketeering and conspiracy to distribute cocaine. Id. On May 26, 2009, a jury trial commenced. On June 11, 2009, the jury found Petitioner guilty of conspiracy to distribute cocaine but acquitted him of the conspiracy to commit murder charge. Dkt. No. 280. On October 16, 2009, the Court sentenced Petitioner to 300 months of imprisonment with credit for time served. Dkt. No. 309.
On October 23, 2009, Petitioner filed a timely notice of appeal to the Fourth Circuit. Dkt. No. 314. In an unpublished opinion, the Fourth Circuit affirmed. United States v. Perez-Amaya, 453 F.App'x 302 (4th Cir. 2011). On July 25, 2013, Petitioner filed the motion to vacate currently before the Court. Dkt. No. 380. The government filed its response in opposition (Dkt. No 388), to which Petitioner replied. Dkt. No. 391. Petitioner also moved to supplement his pleading (Dkt. No. 386), which was granted by the Court. Dkt. No. 390. The government then filed a supplemental response. Dkt. No. 393.
Upon an initial review of the pleadings, the Court determined that an evidentiary hearing was necessary on the issue of whether Petitioner's counsel had communicated the government's plea offers to him before trial. The Court appointed William Cummings to represent Petitioner for this limited purpose. At the hearing, held on March 4, 2015, the Court heard testimony from Petitioner as well as his trial counsel John Iweanoge. The Court finds that the matter is now ripe for disposition.
The grand jury returned the first indictment, which did not name Petitioner as a defendant, on April 10, 2008. On April 24, 2008, the grand jury returned a superseding indictment, which charged Petitioner with a single count of conspiracy to distribute cocaine. Dkt. No. 28. On August 14, 2008, a second superseding indictment was returned charging Petitioner with the same single count. Dkt. No. 122. He was not charged with the additional conspiracy to commit murder count until the third superseding indictment.
II. Legal Standard
Petitioner seeks to vacate his sentence pursuant to 28 U.S.C. § 2255. A petitioner is entitled to relief under 28U.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).
In his motion, Petitioner advanced two bases for relief-ineffective assistance of counsel and his being sentenced on facts not presented in the indictment. At the evidentiary hearing, however, Petitioner, through his counsel, withdrew the supplemental memorandum in which he claimed that he was sentenced on facts not presented in the indictment or found by the jury, as it was based on "an inaccurate factual premise that there was a mandatory minimum sentence." Evidentiary Hr'g Tr. at 3. The Court will therefore examine only the ineffective assistance claim.
Petitioner claims that he received ineffective assistance due to his counsel's failure to: (1) advise him of a plea offer from the government and give proper advice on accepting a guilty plea; and (2) object to the Court's consideration of prior convictions to enhance his sentence as a career offender. Dkt. No. 380. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated a two-part standard for evaluating claims of ineffective assistance of counsel. The first prong requires a showing that counsel failed to provide reasonably effective assistance-in other words, 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 ...