United States District Court, Western District of Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
Tyson R. Manning, a federal inmate proceeding pro se, has moved to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. The government has filed a motion to dismiss, and Manning has responded, making this matter ripe for consideration. Upon review of the record, the court concludes that Manning has not stated any claim for relief under § 2255 and that the government’s motion to dismiss must be granted.
A federal grand jury charged Manning and ten codefendants in a seven-count indictment. Manning was charged with Count One, conspiracy to distribute one thousand kilograms or more of marijuana, in violation of 21 U.S.C. § 846, and Count Four, distribution of a measurable quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1). Pursuant to a written plea agreement signed by Manning, his counsel and the Assistant United States Attorney, Manning pleaded guilty to a lesser included offense of Count One, conspiracy to distribute more than 100 kilograms of marijuana. In the plea agreement, Manning agreed to “waive any right [he] may have to collaterally attack, in any future proceeding, any order issued in this matter, unless such attack is based on ineffective assistance of counsel . . . .” (Plea Agreement at 7, Dkt. No. 266). Manning also agreed to “willingly stipulate there is a sufficient factual basis to support each and every material factual allegation contained within the charging document(s) to which [he was] pleading guilty.” (Id. at 11).
On July 10, 2013, the court conducted Manning’s sentencing hearing, where Manning was present with counsel. During the sentencing hearing, the court adopted the Presentence Investigation Report (“PSR”) and the parties did not object. The PSR indicated a total offense level of 27 and a criminal history category of III, resulting in a guideline imprisonment range of 87 to 108 months. (PSR at 19, 25, Dkt. No. 379). The court imposed a sentence of 80-months imprisonment. Manning did not appeal.
In his § 2255 motion, Manning claims that his sentence was too severe compared to the sentences of his codefendants. Manning also claims that his criminal history was miscalculated as a result of the holding in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). Finally, Manning asserts that counsel provided ineffective assistance by failing to file a direct appeal.
To state a claim for relief under § 2255, a petitioner must prove that one of the following occurred: (1) that his sentence was “imposed in violation of the Constitution or laws of the United States”; (2) that “the court was without jurisdiction to impose such a sentence”; or (3) that “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. Manning bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Jacobs v. United States, 350 F.2d 571, 574 (4th Cir. 1965); Hall v. United States, 30 F.Supp.2d 883, 889 (E.D. Va. 1998).
However, 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. In the plea context, “the defendant must show 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).
A. Argument for Sentence Reduction
Manning claims that there was a sentencing disparity between his sentence and codefendants’ sentences and asks the court to reduce his sentence from 80 months to 40 months imprisonment. He argues that the alleged sentence disparity violates the Equal Protection Clause and that the court incorrectly applied 18 U.S.C. § 3553(a). As support, Manning asserts it is not his fault that he was born into a family involved in criminal activity and that “being a younger member of the family [he] could not . . . dictate anything.” (Mot. to Vacate at 3, Dkt. No. 424). He states he was less culpable than other codefendants and his “level of involvement warrants a sentence below active participants.” (Id. at 4). Finally, Manning asserts that the plea agreement was unclear regarding whether he had a criminal history category of II or III, and that the Rule of Lenity should apply. (Reply to Mot. to Dismiss at 8, Dkt. No. 450). The government argues that Manning waived the right to collaterally attack his sentence.
Manning’s claim that his sentence was too severe is barred by his plea agreement, which waives his right to collateral attack except for claims of ineffective assistance of counsel. (Plea Agreement at 7, Dkt. No. 266). “A criminal defendant may waive his right to attack his conviction and sentence collaterally, so long as the waiver is knowing and voluntary.” United States v. Lemaster, 403 F.3d. 216, 220 (4th Cir. 2005). Manning has not claimed that his waiver was not knowing and voluntary. Indeed, Manning signed the plea agreement and initialed each page, including the page providing, “I waive any right I may have to collaterally attack, in any future proceeding, any order issued in this matter, unless such attack is based on ineffective assistance of counsel . . . .” (Plea Agreement at 7, Dkt. No. 266). At the plea hearing, Manning confirmed that he was voluntarily giving up his right to collaterally attack the judgment at a later date. (Tr. Plea Hr’g at 22, Dkt. No. 432). Manning also confirmed his understanding that “if a sentence is more severe than [he] expected . . . [he] would still be bound by [his] plea.” (Id. at 23). Prior to accepting ...