United States District Court, E.D. Virginia, Newport News Division
OPINION AND ORDER
MARK S. DAVIS, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Antonio Daniel McGhee's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Petitioner's § 2255 Motion and associated memorandum advance four claims, all alleging ineffective assistance of counsel. After reviewing the written record, the Court finds that an evidentiary hearing is unnecessary because the Court's rulings do not turn on credibility determinations, and the record conclusively demonstrates that Petitioner is not entitled to any relief. See R. Gov. § 2255 Proc. in U.S. Dist. Cts. 8(a). For the reasons discussed below, Petitioner's § 2255 motion is DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
In January of 2012, Petitioner and two co-conspirators committed an armed robbery and carjacking, resulting in the theft of several appliances from a delivery truck of a Sears contractor. On February 8, 2012, a federal grand jury returned a multi-count indictment charging Petitioner and codefendant Gabriel Mitchell ("Mitchell") with: (1) Interference with Commerce by Robbery; (2) Carjacking; and (3) Brandishing a Firearm during a Crime of Violence. ECF No. 1. On April 5, 2012, a grand jury returned a multi-count superseding indictment which added a new Count, Conspiracy to Interfere with Commerce by Robbery, and added a new codefendant, Travis Williams ("Williams"). ECF No. 23. Following Williams' plea of guilty to the conspiracy count and firearm brandishing count, a second superseding indictment was returned charging Petitioner and Mitchell with the same four counts as the first superseding indictment. ECF No. 64.
Petitioner pled not guilty to the charges and proceeded to a joint jury trial with Mitchell. At trial, the evidence revealed that Anthony Wilson ("Wilson"), the delivery truck driver, was carjacked by two men. Unbeknownst to Wilson, his delivery helper (Williams) helped arrange the carjacking. Having received information from Williams, the two carjackers appeared at an appliance delivery location, displayed a firearm, bound Wilson and Williams (who was pretending to be a victim), and later off-loaded the appliances.
Petitioner testified in his own defense at trial, admitting his involvement in the theft of appliances, but disputing: (1) that there was a gun present; and (2) that Wilson was a "victim" or that he was abducted, instead contending that Wilson was a willing participant in the theft. See Trial Tr. 790-817, ECF No. 104. At the conclusion of the jury trial, Petitioner was found guilty of all four counts. ECF No. 87. As to the firearm count, the jury concluded that Petitioner was responsible for "brandishing" the gun, thus triggering a seven-year mandatory minimum consecutive sentence. ECF No. 87; 18 U.S.C. § 924(c).
Prior to the jury verdict being read in open Court, the undersigned judge noticed what appeared to be a "stray mark" on the special verdict form. Specifically, the jury was instructed that if they found Petitioner guilty of the firearm count (Count 4), they should answer the following:
With respect to Count 4, mark all that apply in regard to the firearm. During or in relation to a crime of violence the defendant:
___ Carried the firearm
___ Brandished the firearm
ECF No. 87. The jury completed such form by making a clear and obvious checkmark on the "Brandished the firearm" line and making what appeared to be a partial "stray" mark, as contrasted with an affirmative selection, on the "Carried the firearm" line. While the jury's clear finding that Petitioner brandished the firearm likely rendered their election on the lesser offense of carrying the firearm of little legal significance, to avoid any confusion, the Court called counsel to a sidebar to discuss the stray/partial mark. After showing counsel Petitioner's verdict form, and stating that the Court's belief was that the mark next to "Carried the firearm" was a stray mark, the Court proposed asking the foreperson to clarify the jury's finding, and defense counsel agreed to such procedure. Trial Tr. 981-83, ECF No 103. Upon inquiry, the foreperson confirmed that the mark was not an affirmative selection, and the foreperson then used "white-out" provided by the Court to make the verdict form clearly reflect the jury's unanimous finding. Id. at 983-84. The jury was later polled, and each juror confirmed the unanimous verdict as read in open court. Id. at 985.
Petitioner's counsel thereafter filed a written motion for judgment of acquittal raising several grounds, including the contention that the jury was confused by the verdict form as proven by their "hesitant" mark. ECF No. 94, at 4-5. After briefing was complete, the Court issued a written Opinion and Order denying such motion. ECF No. 130.
Petitioner appealed his conviction, and the Fourth Circuit affirmed. ECF No. 170. Petitioner thereafter timely filed the instant § 2255 motion and memorandum in support advancing four claims of ineffective assistance, the first three challenging trial counsel's performance and the fourth challenging appellate counsel's performance. ECF Nos. 183, 187. The Government filed a brief in opposition as well as an affidavit from Petitioner's trial counsel. ECF Nos. 190, 191, 194. Petitioner filed two unsworn reply briefs, one responding to counsel's affidavit and the other responding to the Government's opposition brief. ECF Nos. 195, 196. This matter is therefore ripe for review.
II. STANDARD OF REVIEW
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 must prove by a preponderance of the evidence 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.; 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 enables a petitioner to collaterally attack his 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, 4 8 F.Supp.2d 554, 558 (E.D. Va. 1999).
Although a petitioner advancing new claims asserted for the first time in a § 2255 motion must generally "clear a significantly higher hurdle than would exist on direct appeal, " United States v. Frady, 456 U.S. 152, 166 (1981), a freestanding claim of ineffective assistance of counsel is properly asserted for the first time in a § 2255 motion, see United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (w[I]t is well settled that *a 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. United States v. Baptiste, 596 F.3d 214, 216 n.l (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 United States Supreme Court has interpreted the right to counsel as providing a defendant "'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 was so deficient that it fell below an objective standard of reasonableness; and (2) counsel's inadequate performance caused the petitioner prejudice. Id. at 687-88.w[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); see United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) ("[V]ague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court.") (quotation marks and citation omitted).
Satisfying the first prong of Strickland requires a petitioner to establish that counsel "made errors so serious that [he] was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Reviewing courts strongly presume that counsel exercised reasonable professional judgment, and only in "relatively rare situations" will a § 2255 motion establish that, "*in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.'" Tice v. Johnson, 647 F.3d 87, 102 (4th Cir. 2011) (quoting Strickland, 466 U.S. at 690) . 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. A petitioner's showing of deficient performance must therefore go beyond establishing that counsel's performance was below average, because "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 recently reiterated by the Fourth Circuit, the "basic lesson" of Strickland is not just deference but high deference, and attorneys are permitted to "be selective and strategic without risking an ineffective assistance of counsel claim." United States v. Mason, 774 F.3d 824, 828, 830 (4th Cir. 2014) (citations omitted).
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.WA reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. If a petitioner fails to prove either of the two prongs of the Strickland test, the court need not evaluate the other prong. United States v. Roane, 378 F.3d 382, 404 (4th Cir. 2004).
A. Ground One
Petitioner's first claim alleges that his trial counsel was ineffective for failing to explain the advantages of entering into an "open plea" without a plea agreement, admitting guilt to all four felonies charged in the second superseding indictment. The undisputed facts clearly establish that defense counsel attempted to negotiate a plea deal with the Government that would involve a plea to less than all the charges, but that such negotiations were not successful. There is, however, a clear factual conflict between Petitioner's sworn § 2255 motion and his trial counsel's sworn affidavit regarding whether defense counsel advised Petitioner of the potential sentencing benefits of entering a plea of guilty to all charges. Cf. ECF No. 183, at 4, ECF No. 190 ¶¶ 4-5. Notwithstanding such factual conflict, the Court finds that an evidentiary hearing is not necessary, because even if the Court assumes that Petitioner's version of events is true, Petitioner fails to demonstrate constitutionally deficient performance or resulting prejudice.
First considering Strickland's performance prong, while Petitioner presents evidence in conflict with his lawyer's sworn statement that the two discussed the benefits and drawbacks of pleading guilty without a plea agreement, Petitioner does not challenge his lawyer's sworn assertions that: (1) Petitioner "maintained his innocence throughout the case"; and (2) Petitioner only indicated a willingness to even consider a guilty plea as trial drew near. ECF No. 190 ¶¶ 4, 6. Such facts are further supported by contemporaneous documentation demonstrating counsel's efforts to secure a favorable outcome. See Trial Tr. 5, ECF No. 106 (discussing counsel's efforts to have the Government drop federal prosecution in favor of state larceny charges); ECF No. 190 ¶ 6; ECF No. 194-1 (documenting defense counsel's efforts to negotiate a plea deal to only the conspiracy charge, which would have avoided the mandatory seven year consecutive sentence on the firearm charge). Moreover, the undisputed fact that Petitioner, both outwardly to the Court and jury, and in confidence to his lawyer, maintained his innocence as to all four charges provides important context for analyzing counsel's performance. See ECF No. 190 ¶ 6 ("Mr. McGhee maintained his innocence throughout the case, " but as the trial date approached, he expressed interest in "seeing if the government would offer him a plea agreement, " which caused defense counsel to make additional efforts to negotiate a favorable plea deal); ECF No. 194-1, at 8 (Petitioner's own sworn affidavit executed after he was convicted indicating that "throughout many meetings with counsel I have denied all charges against me at the height that they were attributed to me but have always admitted to playing a lesser role of all charges, " and that Petitioner "asked counsel to try and plea with the Government" only after his co-conspirator pled guilty); Trial Tr. 5, ECF No. 106 (Government's statement to the Court immediately prior to trial: "There have been no plea offers made by the United States in this case, Your Honor. Both defendants have indicated through their lawyers to me that they intended to proceed to trial from, at all stages.").
In addition to the above evidence, the record includes Petitioner's sworn trial testimony, during which he repeatedly and strenuously asserted, under oath, that while he did agree to help steal appliances from the delivery truck, both the truck driver and the truck helper were part of the theft scheme, and thus, Petitioner did not commit a robbery or ...