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United States v. Dull

United States District Court, W.D. Virginia, Abingdon Division

June 10, 2016



          James P. Jones United States District Judge

         Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia for United States; Thomas John Dull, Pro Se Defendant.

         The 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.


         Dull 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").

         Dull 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.)

         At the 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.)

         The probation office prepared a Presentence Investigation Report ("PSR") in anticipation of sentencing. The PSR recommended a total offense level of 27[1] 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 not appeal.

         In his § 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. 484.)


         To 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).

         The 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.

         To 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.

         Dull’s claims of ineffective assistance of counsel do not satisfy Strickland’s stringent requirements. ...

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