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Page v. United States

United States District Court, E.D. Virginia, Newport News Division

July 28, 2015

UNITED STATES OF AMERICA, Respondent. Civil No. 4:14cv40


MARK S. DAVIS, District Judge.

This matter is before the Court on Michael Lavel Page's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion"). ECF No. 39. Petitioner alleges three grounds for relief. The Court finds that an evidentiary hearing is unnecessary because the record conclusively shows Petitioner is entitled to no relief. See R. Gov. § 2255 Proc. in U.S. Dist. Cts. 8(a). For the reasons stated below, Petitioner's § 2255 Motion is DENIED.


On April 12, 2013, officers from the Newport News Police Narcotics Enforcement Unit executed a search warrant at Petitioner's residence. During the search, the officers discovered thirty-two ounces of marijuana, twelve doses of N-Benzylpiperazine (a Schedule I controlled substance), .8 grams of synthetic marijuana, three digital scales, a loaded.45 caliber semi-automatic Taurus pistol, thirteen rounds of ammunition, a black bullet-resistant vest, and $3, 620.50 in cash. After being advised of his rights, Petitioner admitted: (1) that the drugs belonged to him; (2) that he sold between a half pound and a pound of marijuana daily from this residence; (3) that the.45 caliber pistol belonged to him; and (4) that he sold pills in the past.

On June 12, 2013, a grand jury returned a multi-count indictment charging Petitioner with: (1) Possession with Intent to Distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) ("Count One"); (2) Possession with Intent to Distribute N-Benzylpiperazine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) ("Count Two"); (3) Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) ("Count Three"); and (4) Possession of a Firearm in Furtherance of a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1) ("Count Four"). Indictment, ECF No. 1. On August 8, 2013, Petitioner pleaded guilty to Count Four pursuant to a written plea agreement. Plea Agreement, ECF No. 18. On October 22, 2013, the Probation Officer submitted a Presentence Report ("PSR") detailing, inter alia, Petitioner's criminal history, educational background, employment status, and extensive information chronicling Petitioner's history of mental and emotional health issues. ECF No. 31. On October 24, 2013, the Court found Petitioner guilty as to Count Four of the Indictment and sentenced Petitioner to sixty months' imprisonment (the statutory mandatory minimum sentence for such count), a five-year term of supervised release, and $100 special assessment. Judgment, ECF No. 34. On the Government's motion, the Court dismissed the remaining counts alleged in the Indictment.

On April 10, 2014, Petitioner timely filed his § 2255 Motion with a Memorandum in Support of Motion.[1] ECF No. 39. On July 7, 2014, the Court ordered the Government to respond to Petitioner's § 2255 Motion within sixty days of its Order. ECF No. 41. On August 18, 2014, the Government moved for an extension of time to file its answer. ECF No. 43. By Order of August 18, 2014, the Court granted the motion and directed the Government to respond by November 4, 2014. ECF No. 44. On November 4, 2014, the Government filed its response to the § 2255 motion. ECF No. 47. On November 28, 2014, Petitioner moved for an extension of time to reply to the Government's response. ECF No. 48. By Order of December 5, 2014, the Court granted such motion. ECF No. 50. On January 29, 2015, Petitioner filed his reply. Accordingly, the matter is now ripe for disposition.


A federal prisoner, in custody, may collaterally attack his sentence or conviction by moving the district court "to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). To obtain such relief, a petitioner bears the burden of proving that his sentence or conviction was "imposed in violation of the Constitution or laws of the United States, " that the district court "was without jurisdiction to impose such sentence, " that the sentence exceeds "the maximum authorized by law, " or that the sentence or conviction is "otherwise subject to collateral attack." Id . A petitioner must prove the asserted grounds for relief by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Because a § 2255 motion "is ordinarily presented to the judge who presided at the original conviction and sentencing... the judge's recollection of the events at issue" may inform the resolution of the motion. Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977).

A § 2255 motion is, in essence, a statutory federal habeas corpus action that collaterally attacks a sentence or conviction through the filing of a new proceeding, as contrasted with a direct appeal. United States v. Hadden, 475 F.3d 652, 663 (4th Cir. 2007). The existence of the right to pursue a collateral attack does not displace a direct appeal as the "usual and customary method of correcting trial errors." United States v. Allgood, 48 F.Supp.2d 554, 558 (E.D. Va. 1999). To the contrary, with limited exceptions, a petitioner advancing new claims asserted for the first time in a § 2255 motion "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). The "higher hurdle"-the procedural default bar-that applies to claims advanced for the first time in a § 2255 action exists because, once a Petitioner's opportunity to pursue a direct appeal has been waived or exhausted, there is "a final judgment [that] commands respect." Id. at 164-65. Accordingly, a § 2255 "collateral challenge may not do service for an appeal." Id. at 165.

A § 2255 petitioner need not, however, overcome the procedural default bar to advance a freestanding claim of ineffective assistance of counsel, which is properly asserted for the first time in a § 2255 motion. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) ("[I]t is well settled that xa claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance.'" (quoting United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992))). Such rule exists because the Federal Rules Governing § 2255 Proceedings permit expansion of the record, which is generally unavailable on direct appeal and often necessary to properly resolve an ineffective assistance claim. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010) (citing Massaro v. United States, 538 U.S. 500, 504-06 (2003)).

The Sixth Amendment to the Constitution of the United States provides that "the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. Const, amend. VI. The Supreme Court has interpreted the right to counsel as providing a petitioner "the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686 (1984) (emphasis added) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To obtain relief based on an allegation of ineffective assistance, a petitioner must establish both that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) counsel's inadequate performance caused the petitioner prejudice. Id. at 687-88. "[U]nsubstantiated and largely conclusory statements" are insufficient to carry a petitioner's burden as to the two prongs of the Strickland test. United States v. Turcotte, 405 F.3d 515, 537 (7th Cir. 2005).

When evaluating counsel's performance under the first prong of Strickland, courts "must be highly deferential." Strickland, 466 U.S. at 689; see Kimmelman v. Morrison, 477 U.S. 365, 381-82 (1986) (discussing the "highly demanding" Strickland standard). To establish constitutionally deficient performance, a petitioner must demonstrate that his lawyer "made errors so serious that counsel was not functioning as the counsel' guaranteed the [petitioner] by the Sixth Amendment." Strickland, 466 U.S. at 687. Such a showing must go beyond establishing that counsel's performance was below average, since "effective representation is not synonymous with errorless representation." Springer v. Collins, 586 F.2d 329, 332 (4th Cir. 1978); see Strickland, 466 U.S. at 687. As it is all too easy to challenge an act, omission, or strategy, once it has proven unsuccessful, "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. Courts should therefore "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.

The second prong of Strickland requires a petitioner to "affirmatively prove prejudice, " which requires a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 693-94. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Court applies a slightly modified prejudice standard when a petitioner alleges ineffective assistance associated with the entry of a guilty plea, requiring the petitioner to demonstrate 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). ...

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