United States District Court, W.D. Virginia, Abingdon Division
P. Jones United States District Judge
T. Lee, Assistant United States Attorney, Abingdon, Virginia
for United States; Thomas John Dull, Pro Se Defendant.
defendant, Thomas John Dull, proceeding pro se, filed a
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255, based on claims of ineffective
assistance of counsel. The government filed a Motion to
Dismiss. The time allotted for Dull’s response has
expired, making the matter ripe for disposition. After
reviewing the record, I will grant the United States’
Motion to Dismiss.
and twelve codefendants were charged in a multi-count
Indictment. Dull was charged with conspiring to distribute
and possessing with the intent to distribute 280 grams or
more of cocaine base, and five kilograms or more of cocaine,
in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) and
841(b)(1)(C) ("Count One").
pleaded guilty, pursuant to a written Plea Agreement, to a
lesser-included offense of Count One. (Plea Agreement 1, ECF
No. 273.) The Plea Agreement provided that the conspiracy
involved at least 196 grams of cocaine base, resulting in a
base offense level of 30 under the Sentencing Guidelines.
(Id. at 3.)
guilty plea hearing, Dull affirmed that he had had an
adequate opportunity to read and discuss the Plea Agreement
with counsel before signing it. (Plea Hr’g Tr. 4-5, ECF
No. 498.) Dull further affirmed that he was "fully
satisfied with [his] lawyer’s representation."
(Id. at 5.) The prosecutor summarized the terms of
the Plea Agreement. (Id. at 5-7.) Both the
prosecutor and the court advised Dull that he faced a maximum
statutory penalty of not more than twenty years’
imprisonment. (Id. at 5, 8.) Dull affirmed his
understanding that by pleading guilty, he gave up his right
to appeal and to collaterally attack his sentence except on
matters that cannot be waived under the law or that allege
ineffective assistance of counsel. (Id. at 7-8.)
Dull affirmed that no one had made any promises to him other
than those contained in the Plea Agreement to cause him to
plead guilty and that no one had threatened him or attempted
to force him to plead guilty. (Id. at 8.) I found
that Dull was fully competent and capable of entering an
informed plea and that his guilty plea was knowingly and
voluntarily made. (Id. at 13-14.)
probation office prepared a Presentence Investigation Report
("PSR") in anticipation of sentencing. The PSR
recommended a total offense level of 27 and a criminal
history category of IV, resulting in a guideline imprisonment
range of 100 to 125 months. (PSR ¶ 82, ECF No. 364.) I
sentenced Dull to 92 months’ imprisonment, taking into
consideration the disparity in the applicable guideline
ranges between convictions for distribution of cocaine base
and cocaine powder. (Sentencing Tr. 11-12, ECF 499.) He did
§ 2255 motion, Dull alleges that counsel provided
ineffective assistance by coercing him into accepting the
Plea Agreement, refusing to object to the drug quantity set
forth in the Plea Agreement and PSR, and advising him not to
challenge the drug quantity. (§ 2255 Mot. 4, ECF No.
state a viable claim for relief under § 2255, a
defendant must prove: (1) that his sentence was "imposed
in violation of the Constitution or laws of the United
States"; (2) that "the court was without
jurisdiction to impose such sentence"; or (3) that
"the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack." 28
U.S.C. § 2255(a). Dull bears the burden of proving
grounds for a collateral attack by a preponderance of the
evidence. Jacobs v. United States, 350 F.2d 571, 574
(4th Cir. 1965).
proper vehicle for a defendant to raise ineffective
assistance of counsel claims is by filing a § 2255
motion. United States v. Baptiste, 596 F.3d 214, 216
n.1 (4th Cir. 2010). However, in order to establish a viable
claim of ineffective assistance of counsel, a defendant must
satisfy a two-prong analysis showing both that
counsel’s performance fell below an objective standard
of reasonableness and establishing prejudice due to
counsel’s alleged deficient performance. Strickland
v. Washington, 466 U.S. 668, 687 (1984). When
considering the reasonableness prong of Strickland,
courts apply a "strong presumption that counsel’s
conduct falls within the wide range of reasonable
professional assistance." Id. at 689; Gray
v. Branker, 529 F.3d 220, 228-29 (4th Cir. 2008).
Counsel’s performance is judged "on the facts of
the particular case, " and assessed "from
counsel’s perspective at the time."
Strickland, 466 U.S. at 689, 690.
satisfy the prejudice prong of Stickland, a
defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional error, the
outcome of the proceeding would have been different.
Id. at 694. A defendant who has pleaded guilty must
demonstrate that, but for counsel’s alleged error,
there is a reasonable probability that he would not have
pleaded guilty and would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 59 (1985). "A
reasonable probability is a probability sufficient to
undermine confidence in the outcome."
Strickland, 466 U.S. at 694.
claims of ineffective assistance of counsel do not satisfy
Strickland’s stringent requirements.