United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
ROBERT G. DOUMAR, Senior District Judge.
This matter comes before the Court upon David Richardson's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion"). ECF No. 66. For the reasons set forth herein, the Court GRANTS IN PART and DENIES IN PART Petitioner's Motion. ECF No. 66.
I. PROCEDURAL HISTORY
On January 15, 2013, Petitioner was charged in a one count indictment for Conspiracy to Distribute and to Possess with Intent to Distribute Five Kilograms or more of a Mixture or Substance Containing a Detectable Amount of Cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). ECF No. 2. On August 23, 2013, Petitioner pleaded guilty in front of Magistrate Judge Leonard. ECF No. 33. Petitioner signed a Plea Agreement, ECF No. 35, which incorporated a signed Statement of Facts. ECF No. 36. On December 3, 2013, this Court sentenced Petitioner to 260 months of imprisonment and five years of supervised release. J., ECF No. 50. Petitioner appealed even though he agreed to waive his right to appeal in his Plea Agreement. See Plea Agreement, 3-4, ECF No. 35. The Fourth Circuit affirmed Petitioner's conviction on June 2, 2014. Op., ECF No. 63.
On June 1, 2015, Petition filed the instant Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence ("§ 2255 Motion"). ECF No. 66. On September 1, 2015, this Court ordered the government to respond to Petitioner's Motion. Order, ECF No. 70. After an extension of time was granted, the Government filed its Response on November 28, 2015. ECF No. 73. After an extension of time was granted, Petitioner filed his Reply to the Response on January 21, 2016. ECF No. 76.
II. 28 U.S.C. § 2255: MOTIONS TO VACATE, SET ASIDE, OR CORRECT SENTENCE
A. General Standard of Review
Collateral review created by 28 U.S.C. § 2255 allows a prisoner in federal custody to challenge the legality of a federal sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing Court lacked jurisdiction; (3) the sentence imposed was in excess of the maximum amount authorized by law; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255. On such grounds, the petitioner may move the court to vacate, set aside, or correct a sentence. The Supreme Court has held that § 2255 is the appropriate vehicle by which a federal prisoner may challenge both a conviction and the post-conviction sentence. Davis v. United States, 417 U.S. 333, 343-44 (1974).
A district court may dismiss a petitioner's § 2255 motion in several clearly defined circumstances. The statute provides that, "[u]nless the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney [and] grant a prompt hearing thereon...." 28 U.S.C. § 2255. Thus, as a corollary, a court may dismiss a § 2255 motion if it is clearly inadequate on its face and if the petitioner would not be entitled to relief assuming the facts alleged in the motion are true. If the motion when viewed against the record shows that the petitioner is entitled to no relief, the court may summarily deny the motion. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
When filing a § 2255 petition to vacate, set aside, or correct a sentence, a petitioner "bears the burden of proving his grounds for collateral attack by a preponderance of the evidence." Hall v. United States, 30 F.Supp.2d 883, 889 (E.D. Va. 1998) (citing Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967)); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)). A motion under § 2255 may not, however, "do service for an appeal." United States v. Frady, 456 U.S. 152, 165 (1982). Thus, any matter that could have been asserted either at trial or on appeal but was not so asserted is not appropriate for review on motion under § 2255 without a showing of "cause" sufficient to excuse the double procedural fault and "actual prejudice" resulting from the error. Id. at 167-68; see also Wainwright v. Sykes, 433 U.S. 72 (1977); Davis, 411 U.S. at 241-43 ("We believe that the necessary effect of the congressional adoption of [Fed. R. Crim. P. 12] is to provide that a claim once waived pursuant to that Rule may not later be resurrected, either in the criminal proceedings or in federal habeas, in the absence of the showing of cause' which that Rule requires."). A showing of "actual prejudice" requires a petitioner to establish that the error had a "substantial and injurious effect or influence in determining the jury's verdict." Fry v. Pliler, 551 U.S. 112, 116 (2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)).
Absent a showing of "cause" and "prejudice, " a petitioner may raise a procedurally defaulted claim in a collateral attack only upon a showing that a "miscarriage of justice would result from the refusal of the court to entertain the collateral attack." United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999) (citing Frady, 456 U.S. at 167-68; United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir.1994)). In other words, a petitioner must establish actual innocence by clear and convincing evidence. Id.
B. Ineffective Assistance of Counsel Standard of Review
To succeed on an ineffective assistance of counsel claim, a petitioner must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
First, the petitioner must show that counsel's performance fell below an objective standard of reasonableness. To show that defense counsel's performance was objectively unreasonable, the petitioner must articulate specific acts or omissions whereby counsel's performance fell "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. When reviewing the propriety of these alleged acts or omissions, courts must give substantial deference to defense counsel's strategic judgments. Id. at 689-90.
Second, the petitioner must show that he was prejudiced by counsel's deficient performance, in that it is "reasonably likely" that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (citing Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id . (citing Strickland, ...