United States District Court, W.D. Virginia, Abingdon Division
Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia for United States;
Damon Dock, Jr., Pro Se Defendant.
JAMES P. JONES, District Judge.
The defendant, Damon Dock, Jr. ("Dock"), proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255. This matter is before me upon the United States' Motion to Dismiss, and Dock has responded, making the matter ripe for disposition. After reviewing the record, I will grant the United States' Motion to Dismiss and dismiss the Motion to Vacate, Set Aside, or Correct Sentence.
Dock and five codefendants were charged in a multi-count Superseding Indictment. Count Two charged Dock with conspiracy to possess with the intent to distribute five kilograms or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Dock pleaded not guilty and a jury found him guilty of Count Two. On July 17, 2012, I sentenced Dock to 240 months imprisonment. Dock appealed to the United States Court of Appeals for the Fourth Circuit, which affirmed his conviction. United States v. Dock, 541 F.Appx. 242, 247 (4th Cir. 2013) (unpublished).
The evidence at trial was as follows. From the end of 2010 until May 2011, Dock's father, Damon Dock, Sr. ("Senior") distributed between 840 grams and 2.8 kilograms of cocaine base ("crack cocaine"). As payment, codefendant Chris Berry gave Senior stolen property that Senior's girlfriend, codefendant Hope Leonard, then sold. On multiple occasions during the conspiracy, Dock traveled with Senior and Leonard to meet Senior's drug supplier, Chris Avery, in Johnson City, Tennessee. They would then transport the crack cocaine to Senior's residences in Tennessee and Virginia.
At trial, Berry testified that he and his girlfriend, codefendant Amy Moser, obtained various amount of crack cocaine from Senior "almost on a daily basis" from the end of 2010 until May 2011. (Trial Tr. at 15, ECF No. 235.) Berry testified that Dock also transported crack cocaine he obtained from Avery to Senior's residences in Bristol, Tennessee, and Bristol, Virginia. ( Id. at 23-24.)
On May 19, 2011, Dock and codefendants Berry, Moser, Leonard, and Senior checked into a hotel in Bristol, Tennessee, and spent the day smoking crack cocaine. However, the United States Marshals Service had been conducting surveillance on the hotel room and had an arrest warrant for Berry. The officers identified Berry, entered the room, and arrested Dock, Berry, Moser, and Senior. The officers found digital scales, drug paraphernalia, a Beretta handgun, prescription medication, and 5.7 grams of crack cocaine in the room.
In his § 2255 motion, Dock alleges that counsel provided ineffective assistance by failing to present exculpatory evidence at trial consisting of statements made by codefendant Avery to the government.
To establish a claim of ineffective assistance of counsel, petitioner must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 671 (1984). The first prong of Strickland requires a petitioner to show "that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment, " meaning that counsel's representation fell below an objective standard of reasonableness. Id. at 687-88. Courts apply a strong presumption that counsel's performance was within the range of reasonable professional assistance. Id. at 689; see also Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992); Hutchins v. Garrison, 724 F.2d 1425, 1430-31 (4th Cir. 1983).
The second prong of Strickland requires a petitioner to show that counsel's deficient performance prejudiced him by demonstrating a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable ...