United States District Court, E.D. Virginia, Alexandria Division
C. Cacheris United States District Court Judge
matter is before the Court on petition from Mario Wells
(“Wells” or “Petitioner”),
pro se, to vacate, set, aside or correct his
sentence pursuant to 28 U.S.C. § 2255 due to ineffective
assistance of counsel and the Government’s failure to
recommend a sentence reduction. [Dkt. 102.] Petitioner also
requests to appoint counsel in this matter. [Dkt. 117.] For
the following reasons, the Court will deny Petitioner’s
April 15, 2014, Petitioner pleaded guilty to Count One of an
Indictment charging him with conspiracy to distribute 100
grams or more of heroin in violation of 21 U.S.C.
§§ 841(a)(1), 846. Because of the quantity of
heroin involved in the conspiracy and because of
Petitioner’s prior felony drug conviction, Petitioner
was subject to a statutory mandatory minimum sentence of ten
years imprisonment. See Id. § 841(b)(1)(B)(i).
This mandatory minimum was disclosed in the plea agreement
and in the plea colloquy before the Honorable Claude Hilton.
(See Plea Agreement [Dkt. 76] ¶ 1; Plea Tr.
[Dkt. 108] at 4.)
appeared before the undersigned Judge for sentencing on July
10, 2014. The presentence investigation report
(“PSR”) noted, and all parties agreed, that a
statutory mandatory minimum of ten years imprisonment
applied. (SEALED PSR [Dkt. 88] ¶ 5; Sent. Tr. [Dkt. 109]
at 4.) After hearing argument from the parties, the Court
sentenced Petitioner to the mandatory minimum of 120 months,
with credit for time served, followed by an eight-year
supervised release term. (Sent Tr. at 13.)
February 9, 2015, the Government filed a motion under Federal
Rule of Civil Procedure 35(b) to reduce Petitioner’s
sentence by twenty percent due to his substantial assistance
to the law enforcement’s efforts to investigate the
heroin conspiracy. (SEALED Mem. in Supp. [Dkt. 95].) The
Court held a hearing on the motion on February 19, 2015.
(SEALED Minute Entry [Dkt. 98].) At the hearing, Petitioner
agreed with the recommended reduction of twenty percent.
attorney Bruce Johnson represented Petitioner throughout the
above three proceedings.
October 2015, Petitioner filed the present motion to vacate
under 28 U.S.C. § 2255. (Petition [Dkt. 102].)
Petitioner asserts three grounds for relief: (1) Johnson was
ineffective for failing to advise Petitioner that his guilty
plea would expose him to a mandatory minimum ten-year
sentence; (2) Johnson was ineffective for failing to object
to the attribution of coconspirators’ conduct to
Petitioner at sentencing; and (3) the Government failed to
recommend a fifty-percent sentence reduction as allegedly
promised. The Government filed a memorandum opposing the
petition, which included an affidavit from attorney Johnson.
(Mem. in Opp’n [Dkt. 110]; Johnson Aff. [Dkt. 110-1].)
After the Court provided the notice required by Roseboro
v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975),
Petitioner filed a letter reply memorandum. This matter is
now ripe for disposition.
Standard of Review
motion to vacate under 28 U.S.C. § 2255 allows a
prisoner to challenge a sentence “imposed in violation
of the Constitution or laws of the United States.” 28
U.S.C. § 2255(a).The petitioner bears the burden of
demonstrating his grounds for relief by a preponderance of
the evidence. See Hall v. United States, 30
F.Supp.2d. 883, 889 (E.D. Va. 1998).
of ineffective assistance of counsel is a well-recognized
basis for seeking § 2255 relief. See United States
v. King, 119 F.3d 290, 295 (4th Cir. 1997). The
Strickland standard for evaluating an ineffective
assistance claim is also familiar, requiring a petitioner to
prove (1) his counsel’s performance was deficient; and
(2) the deficient performance prejudiced the petitioner.
See Strickland v. Washington, 466 U.S. 668, 694
deficient performance requires a showing that
“counsel’s representation fell below an objective
standard of reasonableness, ” and that the “acts
and omissions” of counsel were, in light of all the
circumstances, “outside the range of professionally
competent assistance.” Id. at 688-90. Such a
determination “must be highly deferential, ” with
a “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance.” Id. at 689; see also Burket
v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000).
Strickland’s prejudice prong 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.” 466 U.S. at
694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Id.; accord Lovitt v. True, 403 F.3d 171,
181 (4th Cir. 2005).
context of alleged ineffective assistance regarding a guilty
plea, the prejudice analysis is modified. See Missouri v.
Frye, 132 S.Ct. 1399, 1409 (2012). “In cases where
a defendant complains that ineffective assistance led him to
accept a plea offer as opposed to proceeding to trial, the
defendant will have to show ‘a reasonable probability
that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to
trial.’” Missouri, 132 S.Ct. at 1409
(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
petitioner basing a claim of ineffective assistance on a
guilty plea also faces the “formidable barrier”
of overcoming “the representations of the defendant,
his lawyer, and the prosecutor” at the plea colloquy.
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
Declarations made “in open court carry a strong
presumption of veracity, ” and the “subsequent
presentation of conclusory allegations unsupported by
specifics is subject to summary dismissal, as are contentions
that in the face of the record are wholly incredible.”
Id. at 74 (citing Machibroda v. United
States, 368 U.S. 487, 495 (1962)). Thus, “in the
absence of extraordinary circumstances, allegations in a
§ 2255 motion that directly contradict the
petitioner’s sworn statements made during a properly
conducted Rule 11 colloquy are always ‘palpably
incredible’ and ‘patently frivolous or
false.’” United States v. Lemaster, 403
F.3d 216, 221-22 (4th ...