United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
BRUCE LEE UNITED STATES DISTRICT JUDGE
MATTER is before the Court on pro se Petitioner
Gilberto Ramos' ("Petitioner") Motion to
Vacate, Set Aside, or Correct Sentence by A Person in Federal
Custody ("§ 2255 Motion"). (Doc. 177).
Petitioner is challenging the judgment from this Court based
on his conviction by jury for conspiracy to distribute five
(5) kilograms or more of cocaine, in violation of 21 U.S.C.
§§841, 846. (Doc. 156). This case concerns
Petitioner's claims that his sentence of 240 months
should be either vacated or reduced to 120 months because (1)
his trial counsel failed to properly investigate his past
conviction and its use in a sentencing enhancement, and (2)
counsel failed to appeal the issue that Petitioner believes
was most likely to succeed. (Doc. 177).
issue is before the Court is whether to grant
Petitioner's § 2255 Motion where Petitioner alleges
that defense counsel rendered ineffective assistance by: (1)
failing to fully investigate 21 U.S.C. § 851 and the
definition of the term "felony drug offense, " and
(2) failing to argue United States v. Simmons, 649
F.3d 237 (4th Cir. 2011), at sentencing. (Doc. 177, at 4, 5).
For the reasons that follow, the Court DENIES
Petitioner's § 2255 Motion.
August 30, 2012, Petitioner Ramos was charged in a one-count
superseding indictment with conspiracy to distribute five (5)
kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841, 846. (Doc. 61). On September 19, 2012, the
government filed a Notice of Prior Conviction pursuant to 21
U.S.C. § 851. (Doc. 72). The Notice informed Ramos that
he faced enhanced punishment under 21 U.S.C. §§ 841
and 846 because he was previously found guilty in the
Superior Court of California of Possession of Marijuana for
Sale, a "felony drug offense." (Id.) On
September 22, 2012, Ramos was arraigned on the superseding
indictment, pleaded not guilty, waived his right under the
Speedy Trial Act and demanded a jury trial. (Doc. 69).
Ramos' trial began on March 11, 2013, and the jury
returned a guilty verdict on March 13, 2013. (Doc. 125).
Ramos was sentenced on September 13, 2013 to 240 months
imprisonment and ten years of supervised release. (Doc. 155).
Judgment for Ramos was entered on September 16, 2013, and he
filed a timely notice of appeal on September 27, 2013. (Doc.
8, 2014, the Fourth Circuit affirmed Ramos' conviction
and sentence in a per curiam decision, holding that the
district court did not err by not submitting Ramos' prior
felony drug offense to the jury or by applying a four-level
enhancement for Ramos' leadership role in the drug
conspiracy. United States v. Ramos, 571 F.App'x
177 (4th Cir. 2014). On December 15, 2014, the Supreme Court
denied Ramos' petition for writ of certiorari. Ramos
v. United States, 135 S.Ct. 882 (2014). On November 17,
2015, Ramos timely filed the instant pro se Motion
to Vacate pursuant to § 2255. (Doc. 177). The government
opposed the Motion on March 25, 2016, (Doc. 181), and Ramos
filed his Reply on April 11, 2015 (Doc. 182).
Standard of Review
to 28 U.S.C. § 2255, a prisoner in federal custody may
move the court which imposed the sentence, to vacate, set
aside, or correct sentence upon grounds that (1) the sentence
was imposed in violation of the Constitution or the laws of
the United States; (2) the court was without jurisdiction to
impose such sentence; (3) the sentence exceeds the maximum
authorized by law; or (4) the sentence is otherwise subject
to collateral attack. 28 U.S.C. § 2255 (2008). The
Petitioner bears the burden of proof and must establish by a
preponderance of the evidence that he is entitled to the
collateral relief sought. Vanater v. Boles, 317 F.2d
898, 900 (4th Cir. 1967); Miller v. United States,
261 F.2d 546, 547 (4th Cir. 1958); United States v.
Hawkins, 2012 WL 3578924, at *1 (E.D. Va. Aug. 17,
2255 provides a safeguard against complete miscarriages of
justice by allowing for the correction of constitutional,
jurisdictional, or other fundamental errors. See United
States v. Addonizo, 442 U.S. 178, 185 (1979); Hill
v. United States, 368 U.S. 424, 428 (1962);
Hawkins, 2012 WL 3578924, at *1. Section 2255 is not
intended to be a substitute for an appeal; thus, "to
obtain collateral relief based on trial errors to which no
contemporaneous objection was made, " petitioner must
make a showing of both "cause" and "actual
prejudice resulting from the errors." United States
v. Frady, 456 U.S. 152, 165-67 (1982). The
Frady "cause and prejudice" standard also
applies to "collateral challenges to unappealed guilty
pleas." United States v. Maybeck, 23 F.3d 888,
891-92 (4th Cir. 1994).
ineffective-assistance-of-counsel claim may be brought in a
collateral proceeding under § 2255, whether or not the
petitioner could have raised the claim on direct appeal.
Massaro v. United States, 538 U.S. 500, 504 (2003);
Dretke v. Haley, 541 U.S. 386, 394 (2004) (stating
that ineffective assistance of counsel claims, may be raised
"as a ground for cause or as a freestanding claim for
relief-to safeguard against miscarriages of
justice.'') see also United States v.
Martinez, 136 F.3d 972, 979 (4th Cir. 1998); United
States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991).
Court denies Petitioner's § 2255 motion on the
grounds of ineffective assistance of counsel because
Petitioner has not met his burden by a preponderance of the
evidence under the two-prong test set forth in
Petitioner's Argument That Counsel Failed to Fully
Investigate 21 U.S.C. § 851 and the Definition of the
Term "Felony Drug Offense, " Does Not Satisfy the
Court holds that Petitioner fails to meet either
Strickland prong for his argument that counsel
failed to fully investigate whether the predicate offense
listed in the Notice of Conviction met the definition of
"felony drug ...