United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
This matter comes before the Court upon Laquan Octavous Draper's ("Petitioner") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (;i§ 2255 Motion"). ECF No. 175. In Petitioner asserts two grounds for relief in his § 2255 Motiont: (1) ineffective assistance of counsel for failure (o challenge sufficiency of the evidence related to the Got-It Video robbery (Count 2) and (2) insufficient evidence pertaining to the Felon in Possession of a Firearm conviction (Count 21). Id. For the reasons set forth, this Court DENIES Petitioner's claim of ineffective assistance of counsel and DENIES Petitioner's claim of insufficient evidence. ECF No. 175. Accordingly, Petitioner Motion is DENIED. ECF No. 175.
I. PROCECURAL HISTORY
On June 20, 2012, Petitioner was named in a twenty-one count indictment in which he was charged with nineteen counts: (1) Conspiracy to Commit Robbery in violation of 18 U.S.C. §1951 (Count 1), (2) fifteen counts of Interference with Commerce by Robbery in violation of 1 8 U.S.C. §§ 1951 and 1952 (Counts 2, 4-14, 16, and 18-20); (3) Using and Discharging a Firearm during a Crime of Violence in violation of 18 U.S.C. § 924 (Count 3); (4) two counts of Using and Brandishing a Firearm during Crime of Violence in violation of 18 U.S.C. § 924 (Counts 15 and 17); and Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g) (Count 21). ECF No. 5.
Following a jury trial held between January 9, 2013 and January 23, 2013, the jury found Petitioner guilty of: thirteen counts of Robbery (Counts 2, 4, 6, 8, 9, 11, 12, 13, 14, 16, 18, 19, and 20), Conspiracy to Commit Robbery (Count 1), Using and Discharging a Firearm During a Crime of Violence-Here a Robbery (Count 3), and Felon in Possession of a Firearm (Count 21). ECF No. 99. On June 5, 2013 the Court sentenced Petitioner to terms of imprisonment consisting of 240 months on Count 1; a term of 120 months on Count 2 of which 53 months was to be served consecutively and 67 months was to be served concurrently; 120 months on Count 3, to be served consecutively; terms of 240 months each on Counts 4, 6, 8, 9, 11, 12, 13, 14, 16, 18, 19, and 20, all to be served concurrently; and a term of 120 months on Count 21, to be served concurrently. In effect, the sentences added up to 413 months total incarceration. ECF No. 136.
Petitioner appealed his judgment to the Fourth Circuit on June 22, 2013. ECF No. 126. On June 16, 2015, the judgment of this Court was affirmed by the Fourth Circuit and final judgment was entered. ECF No. 169, ECF No. 170.
II. PRESENT MOTION
On September 18, 2015, the Clerk recorded Petitioner's § 2255 Motion. ECF No. 175. This motion was timely as Petitioner had placed the motion in the prison mailing system on September 11, 2015 and the motion was then processed on September 12, 2015. ECF No. 175 at 11 and Ex. 1. See Clav v. United States. 537 U.S. 522, 525 (2003)("For the purpose of starting the clock on § 2255's one-year limitation period, we hold, a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction."); U.S. Sup. Ct. R. 13(1) ("Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals (including the United States Court of Appeals for the Armed Forces) is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment."); Houston v. Lack. 487 U.S. 266, 276 (1988) (Establishing the prisoner-mailbox rule, under which a prisoner petition for statute of limitations purposes is "filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.").
In Petitioner's § 2255 Motion, he asserts two grounds for this Court to vacate judgment: (1) ineffective assistance of counsel for failure to challenge sufficiency of the evidence the Got-It Video robbery (Count 2); and (2) insufficient evidence pertaining to the Felon in Possession of a Firearm conviction (Count 21). ECF No. 175.
The Court ordered the Government to respond to the petition on October 13, 2015. ECF No. 176. Government filed its response December 7, 2015. ECF No. 180. Petitioner did not replied to Government's response within the response period. Petitioner's motion under 28 U.S.C. § 2255 is now ripe.
III. 28 U.S.C. § 2255: MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
A. 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).
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)). However, a pro se petitioner is entitled to have his petition and issues asserted therein construed liberally, and is held to less stringent standards than an attorney drafting such documents. Gordon v. Leeke. 574 F.2d 1147, 1151 (4th Cir. 1978), cert denied, 439 U.S. 970 (1978).
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. Where the record refutes a petitioner's allegations, dismissal is appropriate. Likewise, if the motion can be resolved exclusively on issues of law, and no questions of fact exist, then summary dismissal is ...