United States District Court, E.D. Virginia, Alexandria Division
LEONIE M. BRINKEMA, UNITED CTATES DISTRICT JUDGE
Earl Abdulmalik Mohammed ("Mohammed" or "movant"), has Filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Motion to Vacate") [Dkt. No. 52], as well as an addendum to that motion [Dkt. No. 53], Nov. 16, 2015 ("Addendum").
Read generously, Mohammed's motion and its addendum appear to raise five issues. First, he contends that he is actually innocent of the charge to which he pleaded guilty. Motion to Vacate at 5. Second, he alleges that his guilty plea was coerced through ineffective assistance of his counsel, Pleasant Sanford Brodnax, III ("Brodnax" or "counsel"). Id. Third, he claims his sentence should be adjusted based on recent amendments to the U.S. Sentencing Guidelines relating to victim loss. Addendum at 2. Fourth, he contends that the Court erred in granting a two-level enhancement for the use of sophisticated means. Id. at 3. Finally, he argues that the Court erred when it did not grant a two-level reduction for acceptance of responsibility in calculating the appropriate Offense Level. Id. at 2. For the reasons that follow, the Motion to Vacate will be summarily dismissed.
On January 17, 2013, Mohammed waived indictment and pleaded guilty under a written plea agreement to a one-count criminal information charging mail fraud in violation of 18 U.S.C. § 1341.Plea Agr ¶ 1 [Dkt. No. 17], Jan. 17, 2013; Plea Hr'gTr. at 7:13-8:16 [Dkt. No. 43], Aug. 14, 2013. This criminal information arose out of Mohammed's business entity, Global Gold and Metals Trading LLC, which was a discount broker of precious metals. Stmt, of Facts ¶ 1 [Dkt. No. 18], Jan. 17, 2013. As Mohammed admitted in the signed statement of facts, in 2012 he "accepted orders from  customers that he knew [the company] would not be able to fulfill in a timely manner, and caused [these] customers to be told that their orders had been shipped to them when he knew such orders had not, in fact, been shipped." Id. ¶ 2. Specifically, he created tracking numbers from USPS and Fedex that he transmitted to customers to cause them to believe orders were shipped when no parcels were actually sent. Id. ¶¶ 3-15. In total, at the time of the plea agreement, the government had identified fifteen victims who suffered a total of over $500, 000 in losses arising out of this scheme to defraud. Plea Agr. ¶ 8; Stmt, of Facts ¶ 16. The victims ranged throughout the globe including victims in Canada, Australia, and the United Kingdom, as well as throughout the United States. Stmt, of Facts ¶ 16.
Mohammed was sentenced on May 2, 2013 to 108 months of incarceration followed by three years of supervised release. J. as to Earl Abdulmalik Mohammed [Dkt. No. 29], May 2, 2013. In addition, the Court imposed a restitution obligation of $4, 442, 871.91. Rest. Order [Dkt. No. 31], May 2, 2013. This sentence was at the low end of the U.S. Sentencing Guidelines ("USSG") range.
Despite waiving his right to appeal any sentence within the statutory maximum of 20 years imprisonment, Plea Agr. ¶ 5, Mohammed filed an appeal only of his sentence and raised a claim of ineffective assistance of counsel. Notice of Appeal [Dkt. No. 34], May 14, 2013. The Fourth Circuit summarily dismissed his appeal, finding that the expansive appellate waiver provision in his plea agreement barred appeal of the sentence and that the record did not conclusively show ineffective assistance. Order of USCA [Dkt. No. 48], July 8, 2014. Following that dismissal, Mohammed filed a petition for certiorari raising the issues of whether he "waived [his] right to appeal knowingly and voluntarily; and whether the sentencing guidelines that were relied upon were correct and appropriate." Motion to Vacate at 3. That petition was denied. Id. Mohammed timely filed his Motion to Vacate on November 9, 2015.
A. Standard of Review
A motion to vacate under 28 U.S.C. § 2255 provides for collateral attack on a conviction or sentence when the conviction or sentence was imposed in violation of the United States Constitution or laws, when the court lacked jurisdiction to impose the sentence, when the sentence was in excess of the maximum authorized by law, or when the conviction or sentence is otherwise subject to a collateral attack. See 28 U.S.C. § 2255(a). To prevail on a § 2255 motion, a movant bears the burden of proving his grounds for collateral relief by a preponderance of the evidence. See Jacobs v. United States, 350 F.2d 571, 574 (4th Cir. 1965).
Relief under § 2255 is designed to correct for fundamental constitutional, jurisdictional, or other errors, and it is therefore reserved for situations in which failing to grant relief would be "inconsistent with the rudimentary demands of fair procedure or constitute a complete miscarriage of justice." United States v. Vonn, 535 U.S. 55, 64 (2002) (quoting United States v. Timmreck, 441 U.S. 780, 783 (1979)). A § 2255 motion "may not do service for an appeal, " and claims that have been waived are therefore procedurally defaulted unless the movant can show cause and actual prejudice. United States v. Frady. 456 U.S. 152, 165-67(1982). An exception applies, however, when a defendant brings a claim of constitutionally ineffective assistance of counsel. See United States v. Gastiaburo. 16 F.3d 582, 590 (4th Cir. 1994).
Under § 2255(b), a movant is to be granted an evidentiary hearing on his motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Summary dismissal of § 2255 allegations is "warranted only if a habeas petitioner's allegations when viewed against the record of the plea hearing are palpably incredible or patently frivolous or false." United States v. White. 366 F.3d 291, 297 (4th Cir. 2004) (quoting Blackledge v. Allison, 431 U.S. 63, 76 (1977)). Because a § 2255 motion "is ordinarily presented to the judge who presided at the original conviction and sentencing of the prisoner, " that judge may take into account her "recollection of the events at issue" when deciding whether to summarily dismiss it. See Blackledge. 431 U.S. at 74 n.4.
B. Actual Innocence
Mohammed asserts that at the time he pleaded guilty, "[he] was notaware that creating false shipping labels and lying to customers about delivery was not a violation of mail fraud if my intent was to delay the delivery process and buy additional time to eventually deliver the product to customers." Motion to Vacate at 5. He continues, "[a]t no time prior to this incident or anytime thereafter did I execute a scheme to defraud customers of their monies as required under the mail fraud statute." Id These statements are wholly inconsistent with Mohammed's sworn statements during his plea hearing. Plea Hr'g Tr. at 34:17-35:14;
To succeed on a post-conviction claim of actual innocence, a movant ''must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Schlup v. Delo. 513 U.S. 298, 327 (1995). Mohammed has not submitted any new or reliable evidence to support his claim. "Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim." Id. at 316. Accordingly, this ground is without merit.
C. Ineffective Assistance of Counsel and Coerced Guilty Plea
To establish ineffective assistance of counsel, Mohammed must show both that (1) "counsel's performance was deficient" and that (2) "the deficient performance prejudiced the defense." Strickland v. Washington. 466 U.S. 668, 687 (1984). Deficient performance occurs when "counsel's representation fell below an objective standard of reasonableness." Id. at 688. A movant can show prejudice when there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id at 694. A showing that "the errors had some conceivable effect on the outcome ...