United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson, United States District Judge
the Court is a pro se Motion submitted pursuant to
Title 28, United States Code, Section 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody
("Petition") filed by Linda Avila
("Petitioner"). Both parties have submitted
memoranda on the relevant issues; thus, the matter is ripe
for adjudication. For the reasons discussed below,
Petitioner's § 2255 Motion is DENIED.
FACTUAL AND PROCEDURAL HISTORY
was named in a twenty-one count indictment on July 25, 2014.
Count One charged Petitioner with Conspiracy to Defraud the
Government with Respect to Claims, in violation of 18 U.S.C.
§ 286. Counts Two through Eleven charged her with False
Claims, in violation of 18 U.S.C. § 287. Counts Twelve
through Twenty-One charged her with Mail Fraud, in violation
of 18 U.S.C. § 1341.
November 17, 2014, Petitioner pleaded guilty to Counts One
and Twelve. On May 20, 2015, the Court sentenced Petitioner
to one-hundred-twenty (120) months imprisonment on Count One
and twenty-four (24) consecutive months of imprisonment on
Count Twelve, to be followed by three years of supervised
release and restitution in the amount of $7, 283, 343.61. The
remaining nineteen counts were dismissed upon a motion by the
November 16, 2015, Petitioner filed the current motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C
§ 2255. ECF No. 40. On March 2, 2016, the United States
filed its Response. ECF No. 51. The Court has also reviewed
Petitioner's handwritten Reply, dated March 19, 2016.
argues that her counsel was constitutionally ineffective for
multiple reasons. First, Petitioner claims that she was
"misadvised" on the terms of her plea agreement and
that her counsel failed to file a timely appeal after
sentencing. In addition, the Petitioner claims that she was
suffering from a "mental disease or defect" that
impaired her ability to fully cognize the nature of the
charges against her and the consequences of pleading guilty.
She argues that her attorney should have notified the Court
of her condition and requested a competency hearing. Second,
Petitioner asserts that her attorney failed to request a
lesser included offense instruction. Lastly, the Petitioner
contends that her attorney neglected to review the
Presentence Report with her in violation of due process.
United States asserts that the instant Petition ought to be
rejected in its entirety because the Petitioner has failed to
show that her former counsel provided unreasonably poor
service as defined under Strickland v. Washington,
466 U.S. 668 (1984). The United States highlights statements
that the Petitioner made under oath during her November 17,
2014, plea hearing and May 20, 2015, sentencing hearing as
evidence that contradicts her claims that she received
inadequate representation. Regarding Grounds Two and Three of
the Petition, the United States argues that they lack
sufficient evidence to investigate further.
Petitioner seeks post-conviction relief available to federal
prisoners under Section 2255 of Title 28 of the United States
Code. The Section provides in relevant part:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside, or correct
U.S.C. § 2255. By seeking to vacate a judgment of
conviction, the movant bears the burden of proving his or her
claim by a preponderance of the evidence. Miller v.
United Slates, 261 F.2d 546, 547 (4th Cir. 1958).
Pro se filers, such the Petitioner in this case, are
entitled to a more liberal construction of their pleadings.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978), cert denied, 439 U.S. 970 (1978) (providing
that a pro se petitioner is entitled to have his
petition construed liberally and is held to less stringent
standards than an attorney drafting the complaint). When
deciding a § 2255 motion, the Court must promptly grant
a hearing "unless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief." 28 U.S.C. § 2255(b). Motions under
§ 2255 "will not be allowed to do service for an
appeal." Sunal v. Large, 332 U.S. 174, 178
(1947). As a result, issues already fully litigated on direct
appeal may not be raised again under the guise of collateral
attack. Ineffective assistance of counsel claims should be
raised in a collateral motion instead of a direct appeal.
Petition does not run afoul of the one-year statute of
limitations time bar. The relevant law, 28 U.S.C. §
2255(f), states that a defendant has a one-year period to
file a Section 2255 motion. This period starts either (1)
from the date on which the judgment of conviction final; (2)
the date on which the impediment to making a motion created
by governmental action in violation of the Constitution or
laws of the United States is removed, if the movant was
prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or (4) the date on
which the facts supporting the claim or claims presented
could have been discovered through the ...