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Avila v. United States

United States District Court, E.D. Virginia, Norfolk Division

July 15, 2016

LINDA AVILA, Petitioner,


          Raymond A. Jackson, United States District Judge

         Before 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.


         Petitioner 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.

         On 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 United States.

         On 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.

         Petitioner 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.

         The 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.


         A. Section 2255

         The 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 the sentence.

         28 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.

         The 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 ...

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