United States District Court, E.D. Virginia, Alexandria Division
LIAM O'GRADY UNITED SUITES DISTRICT JUDGE.
This matter comes before the Court on Petitioner Saraeun Min's Motion to Vacate, set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Motion is DENIED.
From June to October 2010, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") conducted an undercover investigation involving Petitioner and other co-conspirators. In June 2010, an ATF confidential informant introduced three undercover law enforcement officers ("UCs") to Defendant Phun, who was based in Philadelphia. During the meeting, they discussed Phun's large-scale marijuana trafficking as well as a potential armed robbery of a narcotics "stash house" in Virginia. Following this initial meeting, Phun met with the UCs from June 2010 to October 2010, exchanging contraband cigarettes for marijuana.
On October 6, 2010, Phun met with the UCs in Fairfax County, Virginia to discuss the logistics of the stash house robbery. The UCs provided Phun with pictures of motels, explaining that these were the locations where one UC had previously picked up kilograms of cocaine. The UC explained that when he arrived to collect the drugs, he observed ten kilograms of cocaine and was met by three or four armed individuals. Phun then explained that he had access to ballistic vests as well as FBI raid jackets and hats, and that he and his associates could pose as law enforcement during the robbery. The UCs informed Phun that the cocaine would arrive at the stash house in three weeks.
On October 21, 2010, the UCs met with Phun, Defendant Johnson, and a third unnamed individual at a Famous Dave's restaurant in Philadelphia to discuss the upcoming robbery. The UCs explained the seriousness of the robbery and questioned the Defendants' desire to conduct it. Defendants agreed that they wished to go through with it. Johnson confirmed that the crew would bring their own firearms for the task. At the end of the meeting, the UCs informed Defendants that the cocaine would arrive in Virginia the following Thursday. Defendants agreed that they would travel to Virginia on Wednesday and conduct the robbery on Thursday.
On October 28, 2010, the remaining Defendants, including Petitioner, arrived in Virginia to conduct the robbery. Defendant Un contacted the UCs and arranged to meet at a gas station in Fairfax County, Virginia. Around 1 lam, the UC arrived at the gas station where Defendants were parked in a white Suburban. Un and Johnson approached the UC where they shook hands. The UC then advised the Defendants to follow him to a storage facility where the rental car to be used for the robbery was located.
After following the UCs to a storage facility, Defendants Un, Johnson, and Min indicated that they were ready to do the job, and stated that the firearms were in the white Suburban. After more discussion, the UC suggested that they transfer the firearms from the Suburban to the rental. Un then walked to the Suburban and engaged in conversation with Defendant Stevens and Petitioner. Ten minutes later, Stevens and Petitioner exited the car and walked towards the storage unit, concealing firearms under their clothes and in their pockets. They then placed the guns in a compartment inside the rental car. Defendants McCalister and Stevens then joined the rest of the group in the storage unit. The UC asked McCalister and Stevens whether they were ready, and they confirmed they were. At this time, the UC pretended to receive a call from a drug organization member and advised the group that it was time to start the robbery. Law enforcement then moved in and arrested Petitioner and the other Defendants.
On December 28, 2010, Min was indicted along with five co-Defendants on three counts: (1) conspiracy to affect commerce by robbery in violation of 18 U.S.C. § 1951(a) (the "Hobbs Act"); (2) possession of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c); and (3) conspiracy to possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1). All six defendants were tried jointly. On March 18, 2011, the jury found four of the defendants, including Petitioner, guilty of all three counts. Two other defendants were found guilty of the first two counts. On July 1, 2011, this Court sentenced Petitioner to serve 195 months of imprisonment (two concurrent terms of 135 months and a consecutive term of 60 months). The six defendants filed a consolidated appeal with the United States Court of Appeals for the Fourth Circuit. On January 3, 2013, the Fourth Circuit affirmed the convictions. U.S. v. Min, 704 F.3d 314 (4th Cir. 2013). The United States Supreme Court denied a petition for certiorari on May 28, 2013. Min v. U.S., 133 S.Ct. 2752 (2013). On May 29, 2014, Min filed the current petition and a supplemental brief and memorandum of law. Dkt. Nos 352, 353. The United States filed a response in opposition on September 4, 2014, after receiving an extension of time from the Court. Dkt. No. 390. Min then filed a reply brief on December 5, 2014, also after receiving an extension of time from the Court. Dkt. No. 415.
On December 31, 2015, Defendant, through an appointed federal public defender, filed an unopposed Motion to Reduce Sentence under changes to the Sentencing Guidelines that had been made retroactive. Dkt. No. 479. The Court granted the Motion and reduced Min's sentence from 195 to 180 months.
A petitioner is entitled to relief under 28 U.S.C. § 2255 if he demonstrates either: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255.
In considering a § 2255 claim, a court should consider whether the petitioner is raising arguments that should have been brought on direct appeal. Generally, claims not raised on direct appeal are considered procedurally defaulted and may not be raised on collateral review absent extraordinary circumstances Massaro v. United States, 538 U.S. 500, 504 (2003) (citations omitted); Mustapha v. United States, 2005 WL 1667682, at *5 (E.D. Va. June 10, 2005). Ineffective assistance of counsel claims and jurisdictional errors are two exceptions to this general rule. Id.; United States v. Cotton, 535 U.S. 625, 630 (2002) ("[S]ubject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived."). In order to bring a procedurally defaulted claim in a § 2255 motion, "a convicted defendant must show both (1) 'cause' excusing his procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." United States v. Maybeck, 23 F.3d 888, 891 (4th Cir. 1994). To establish cause in order to excuse a procedural default, petitioner must point to "something external to the defense, such as the novelty of the claim or the denial of the effective assistance of counsel, " that impeded the defendant in seeking an appeal. United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999); Mobley v. United States, 91A F.Supp. 553, 556 (E.D. Va. 1997). "Thus, for petitioners seeking to raise a new claim on collateral review, the 'cause and prejudice' standard creates a 'significantly higher hurdle than would exist on direct appeal."' Mobley, 91A F.Supp. at 556 (citing Frady, 456 U.S. at 166). To show prejudice, the petitioner must demonstrate that the alleged error "worked to his actual and substantial disadvantage, infecting his [sentence] with error of constitutional dimensions." Frady, 456 U.S. at 170 (emphasis in original). Demonstrating prejudice requires a petitioner to show a reasonable probability of a different outcome absent the alleged error. Id. at 172.
Min rests his § 2255 motion on four different grounds: (1) the district court lacked jurisdiction to find him guilty; (2) courts have judicially expanded violations of 18 U.S.C. § 1951(a) to the point where their findings are unconstitutional; (3) he received ineffective assistance of counsel; and (4) there was an improper basis for ...