United States District Court, E.D. Virginia, Richmond Division
JAMES R. SPENCER, Senior District Judge.
THIS MATTER is before the Court on pro se Petitioner Robert L. Nichols' Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") (ECF No. 31), and the Government's Motion to Dismiss Petitioner's Motion to Vacate, Set Aside, or Correct Sentence ("Motion to Dismiss") (ECF No. 35). For the reasons set forth below, the Motion to Dismiss is GRANTED and the § 2255 Motion is DISMISSED.
a. Factual Background
According to the Statement of Facts (ECF No. 19), on May 2, 2006 Officers Spencer and Howe of the Richmond Police Department and Virginia State Troopers Cash and Miller started to approach two persons at the intersection of 19th Street and Dinwiddie Avenue in Richmond, Virginia. One of the persons, Petitioner Robert L. Nichols, Jr. ("Nichols" or "Petitioner"), went to the door of the residence at 1903 Dinwiddie Avenue and acted as though he was knocking at the door. Officer Spencer requested that Nichols come back down to the sidewalk and speak with her. Nichols came down the steps from the porch and asked what was going on. After Officer Spencer replied that nothing was going on, she asked Nichols if he had any weapons on him and if he would consent to a weapons pat-down. Nichols took a step back and asked why the officer wanted to pat him down. Officer Spencer repeated the request, and moved to the side of Nichols where she observed a large bulge that appeared to be a firearm in the back of his waistband under his shirt. Officer Spencer moved toward Nichols, who then began running away.
Officers Spencer and Howe and Troopers Cash and Miller began to pursue Nichols as he fled. During the pursuit, Nichols threw a number of items on the ground, including currency, a plastic baggie, and a firearm. When Officer Howe and Trooper Cash were able to catch Nichols, he was uncooperative and force was required to take him into custody. Nichols was taken to the Medical Center of Virginia ("MCV") for treatment and medical clearance. At MCV, Nichols broke loose from Trooper Miller and fled, but was subsequently found hiding behind a dumpster and was again taken into custody.
It was later discovered that the plastic baggie contained 65 baggie corners totaling 2.97 grams of heroin, and the firearm was a 10 mm semiautomatic pistol.
b. Procedural Background
On June 7, 2006, a federal grand jury in the Eastern District of Virginia returned a four-count Indictment against Nichols alleging: (1) possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841; (2) possession of cocaine base, in violation of 21 U.S.C. § 844; (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (4) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On August 1, 2006, the grand jury returned a four-count superseding indictment (ECF No. 5), charging Nichols with: (1) possession with intent to distribute heroin, in violation of 21 U.S.C. § 841 ("Count One"); (2) possession of heroin, in violation of 21 U.S.C. § 844 ("Count Two"); (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) ("Count Three"); and (4) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) ("Count Four").
On February 21, 2007, Nichols pleaded guilty to Counts One and Three of the superseding indictment. (ECF No. 18.) On May 23, 2007, this Court sentenced Petitioner to 240 months' imprisonment and three years of supervised release on Count One, and 60 consecutive months' imprisonment and three years of supervised release on Count Three. (ECF No. 27.) The remaining counts of the superseding indictment were dismissed on motion of the Government. Nichols did not appeal his conviction.
Nichols' present § 2255 Motion was filed in this Court on July 22, 2013. In his § 2255 Motion, Nichols alleges two grounds for relief:
Ground One: Ineffective assistance of counsel for failure to file an appeal as to the erroneous guideline range
Ground Two: Ineffective assistance of counsel for failure to advise Nichols of his right to appeal
The United States filed its Motion to Dismiss on October 4, 2013 ("Gov'ts Resp.") (ECF No. 35). Nichols filed a reply on October 24, 2013 ("Reply Mem.") (ECF ...