United States District Court, E.D. Virginia, Alexandria Division
LEONIE M. BRINKEMA, District Judge.
Before the Court is Jonathan Sanders' ("Sanders" or "movant") pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody ("Motion to Vacate"), in which he claims that his Criminal Justice Act attorney, Joseph John McCarthy (McCarthy), provided ineffective assistance in connection with Sanders' decision to plead guilty. The record establishes that there is no merit to this claim which will be summarily dismissed without the need for a response from either the United States or McCarthy.
Movant was arrested on October 17, 2013 along with eleven co-defendants as part of a major cocaine distribution investigation which had included the extensive use of wiretaps. A Pretrial Services Report was prepared on October 21, 2013, in which Sanders' criminal record, including multiple pending charges in Stafford County, was included. Sanders waived a detention hearing on October 21, 2013 and remained in custody. On December 4, 2013 Sanders waived indictment and pursuant to a written plea agreement pleaded guilty to conspiracy to distribute 280 grams or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A). On March 7, 2013, he was sentenced to 180 months imprisonment, consisting of 120 months on the drug charge and 60 months consecutive on the gun charge. He was also sentenced to five years of supervised release, required to pay $200 in special assessments, and agreed to forfeiture of certain assets. He did not appeal either his conviction or sentence, but timely filed his Motion to Vacate on February 19, 2015.
A. Standard of Review
Under 28 U.S.C. § 2255, a federal prisoner may collaterally attack a conviction or sentence that was imposed in violation of the United States Constitution or laws, where the court lacked jurisdiction to impose the sentence, where the sentence was in excess of the maximum authorized, or where the sentence or conviction is otherwise subject to collateral attack. To prevail on a § 2255 motion, a movant bears the burden of proving his grounds for relief by a preponderance of the evidence. Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967).
Relief under § 2255 is designed to correct for fundamental constitutional, jurisdictional, or other errors, and it is therefore reserved for situations in which failing to grant relief would otherwise "inherently result in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 442. 428 (1962)). Moreover, a motion pursuant to § 2255 "may not do service for an appeal, " and claims that have been waived by a failure to appeal are therefore procedurally defaulted unless the movant can show cause and actual prejudice. United States v. Frady, 456 U.S. 152, 165-67 (1982); United States v. Mavbeck, 23 F.3d 888, 891-92 (4th Cir. 1994)(applying standard to unappealed guilty pleas). An exception applies, however, when a defendant brings a claim of constitutionally ineffective assistance of counsel, which can be raised in a collateral attack on his conviction or sentence. See United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998); United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991).
B. Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, Sanders must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a showing of both deficient performance by counsel and prejudice resulting from that deficient performance. Because it "is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence" and because a wide range of legitimate defense strategies are possible in a given case, "scrutiny of counsel's performance must be highly deferential." Id. at 689. Moreover, Sanders must make an additional showing 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." Id. at 694. In this context, where a movant pleaded guilty, that means "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would instead have insisted on going to trial." Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) (quoting Hill v. Lockhart 474 U.S. 52, 59 (1985)).
When a movant who has pleaded guilty claims ineffective assistance of counsel in connection with that plea, the movant's statements made during the plea colloquy, especially about his satisfaction with counsel's performance, are binding absent "clear and convincing evidence to the contrary." Fields v. Att'v Gen, of Md., 956 F.2d 1290, 1299 (4th Cir. 1992) (citing Blackledge v. Allison, 431 U.S. 63, 74-75 (2005)).
C. Sanders's Claims
Sanders presents four grounds of ineffective assistance of counsel. In Ground One he alleges that McCarthy was not familiar with charges that were then pending against Sanders in Stafford County and that lacking this knowledge, McCarthy could not provide adequate legal advice. The claim is patently frivolous. The record shows that the pending charges in Stafford County, which included cocaine, oxycodone, and marijuana offenses as well as a failure to appear, were listed in the Pretrial Services Report which counsel had before the detention hearing. Moreover, this claim is directly contradicted by some of the allegations in Ground Two, in which Sanders twice alleges that McCarthy did know about the pending charges in Stafford County. Given the clear evidence that McCarthy was aware of those charges, there is no merit to Ground One, which will be dismissed.
Sanders has not attacked the voluntariness of his guilty plea, has not alleged being innocent of the two crimes to which he pleaded guilty, and has not attacked the sentence imposed, which was the minimum he could receive given the statutory mandatory minimum associated with the two counts to which he pleaded guilty. Instead, in Ground Two he complains that McCarthy failed to suppress evidence, ...