United States District Court, Western District of Virginia, Big Stone Gap Division
Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States;
Ronnie L. Robbins, Pro Se Defendant.
James P. Jones United States District Judge
The defendant, Ronnie L. Robbins, proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255. Robbins claims that the grand jury was unconstitutionally impaneled and that counsel provided ineffective assistance. This matter is before me upon the United States’ Motion to Dismiss. Robbins responded to the motion, making the matter ripe for disposition. After reviewing the record, I grant the United States’ Motion to Dismiss and dismiss the Motion to Vacate, Set Aside, or Correct Sentence.
On November 18, 2010, Robbins was charged in a six-count Superseding Indictment with offenses involving forging a certificate of discharge from the United States military, falsely representing that he had received the Vietnam Service Medal and the Vietnam Campaign medal, making false statements in an application for disability benefits from the Department of Veterans Affairs, and mail fraud. Robbins pleaded not guilty and proceeded to a jury trial that took place from February 28 through March 2, 2011. The jury found Robbins guilty of Counts One, Two, Three, Five, and Six.
Robbins’s Presentence Investigation Report (“PSR”) indicated a Total Offense level of 23, with a Criminal History Category of I. This resulted in an advisory guideline range of imprisonment of 46 to 57 months. On July 12, 2011, I imposed a sentence of 24 months, consisting of 12 months for Counts One and Two, six-months for Count Three, and 24 months for Counts Five and Six, all terms to be served concurrently. Robbins appealed to the United States Court of Appeals for the Fourth Circuit which affirmed his convictions on Counts One, Two, Five, and Six, vacated his conviction on Count Three, and remanded to this court for resentencing. United States v. Robbins, 494 F.App’x 337, 339 (4th Cir. 2012) (unpublished). On October 9, 2012, I resentenced Robbins to 24months of incarceration, consisting of 12 months for Counts One and Two, and 24 months for Counts Five and Six, to be served concurrently. I also imposed a two-year term of supervised release.
In this § 2255 motion, Robbins alleges that the grand jury was unconstitutionally impaneled. Robbins also alleges ineffective assistance of counsel on numerous grounds. I find that Robbins’s Motion to Vacate fails and will be dismissed.
A collateral attack under § 2255 may not substitute for an appeal. Claims regarding trial or sentencing errors that could have been, but were not, raised on direct appeal are barred from review under § 2255, unless the defendant shows cause for the default and actual prejudice or demonstrates actual innocence. See Bousley v. United States, 523 U.S. 614, 622 (1998). Attorney error can serve as cause for default, but only if it amounts to a violation of the defendant’s constitutional right to effective assistance of counsel. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
To demonstrate ineffective assistance of counsel, a convicted defendant must show that counsel’s representation was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Courts adopt a “strong presumption” that counsel’s actions fall within the “wide range of reasonable professional assistance.” Id. at 689. Further, a convicted defendant must show that his counsel’s performance was so prejudicial as to “deprive the defendant of a fair trial.” Id. at 687. To establish this level of prejudice, Robbins must demonstrate that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In a § 2255 motion, the defendant bears the burden of proving his claims by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).
A. Grand Jury Proceedings.
Robbins alleges that the grand jury was unconstitutionally impaneled because one of its members, Tammy Robinette, had a “personal bias and prejudice against [him].” (Mot. to Vacate at 4, ECF No. 139.) Robbins’s § 2255 motion contains a multitude of incongruous evidence in support of this claim. This evidence includes photos of Robbins from a “womanless beauty pageant” wearing a wig he asserts belongs to Robinette, as well as references to a family member of Robinette’s who worked with a teacher who allegedly sexually abused a family member of Robbins’. (Mot. to Vacate Attach. 1 at 2-4, ECF No. 139-1; Id. Attach. 7 at 1-4, ECF No. 139-7.) Robbins also discusses occasions where he saw Robinette in public venues, such as a movie theatre, school basketball game, Food City, and Wal-Mart. (Mot. to Vacate Attach. 1 at 1, 3-4, ECF No. 139-1; Resp. to Mot. to Dismiss Attach. 1 at 25-26, ECF No. 145-1.) The United States argues that this claim should be rejected because Robbins failed to raise it at any time prior to his § 2255 motion.
Robbins failed to raise this claim on direct appeal. Robbins asserts he became aware of Robinette’s presence on the grand jury on November 19, 2010. (Resp. to Mot. to Dismiss Attach. 1 at 11, ECF No. 145-1.) Robbins’s jury trial was completed on March 2, 2011. Thus, by his own admission, Robbins was aware of this claim well before his direct appeal. Robbins has not demonstrated “either ‘cause’ and actual ‘prejudice’” for his default or that he is ‘“actually innocent.’” Bousley, 523 U.S. ...