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Dinning v. United States

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

July 20, 2016

UNITED STATES OF AMERICA, Respondent. Civil Action Nos. 2:15CV420, 2:15CV421


          Raymond A. Jackson Norfolk, United states District Judge

         Before the Court is a Motion submitted pursuant to Title 28. United States Code, Section 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Petition"), filed by pro se litigant Brian Ray Dinning ("Petitioner"). For the reasons set forth below, Petitioner's § 2255 Petition is DENIED.


         On June 6, 2012, Petitioner was indicted and charged with twenty-five counts of Wire Fraud in violation of 18 U.S.C. § 1343 in criminal case 2T5CR84. On September 19, 2012, Petitioner was indicted and charged with two counts of Bank Fraud in violation of 18 U.S.C. § 1344 in criminal case 2:15CR140. On January 4, 2013, the two indictments were consolidated into a single case; and, on January 17, 2013, after being reassigned to and recused by the many district judges in the Norfolk Division, the case was reassigned to District Judge Raymond A. Jackson, the sole remaining available district judge.

         On June 3, 2013, Petitioner pleaded guilty to Count 19 of the wire fraud indictment and Count 2 of the bank fraud indictment. On October 7. 2013, the Court sentenced Petitioner to eighty (80) months on Count 19, and seventy (70) months on Count 2, to be served consecutively for a total term of one hundred fifty (150) months, an upward variance of the United States Sentencing Guidelines ("Sentencing Guidelines"). On October 8, 2013, Petitioner filed a Notice of Appeal pro se. On June 13, 2014, the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") affirmed Petitioner's convictions and dismissed Petitioner's appeal. United States v. Dinning, 576 Fed.Appx. 149 (4th Cir. 2014) (per curiam); ECF No. 98. The Fourth Circuit denied Petitioner's motion for rehearing en banc on August 4, 2014. ECF No. 100.

         On September 10, 2015, Petitioner, acting pro se, filed the instant § 2255 Petition. ECF No. 106. On January 15, 2016, the Government filed its Response, ECF No. 112, and on February 5, 2016, Petitioner filed his Reply, ECF No. 116.

         The § 2255 Petition, its accompanying Memorandum, and Exhibits total upwards of five hundred twenty (520) pages, ECF No. 106; ECF No. 107, alleging several grounds for relief consolidated and summarized as follows: (1) Petitioner was prejudiced by ineffective assistance of counsel in nearly every aspect of the proceedings; (2) Petitioner suffered violations of his First Amendment rights when the Court ordered portions of his blog and website removed; (3) Petitioner's plea was not knowing, voluntary, or intelligent, and the Government breached the resulting Plea Agreement; (4) Petitioner's sentence exceeded the maximum allowed by law and was a departure without proper notice afforded to Petitioner; (5) Petitioner's sentence was wrongly calculated under the Sentencing Guidelines; and (6) Petitioner is legally and factually innocent. Additionally, Petitioner moves to have his case reassigned to a new judge.

         The Government refutes Petitioner's claims and argues that none have merit. The Government argues that judicial scrutiny of counsel's performance should be highly deferential with a strong presumption that counsel's conduct was within the realm of reasonable professional assistance. The Government argues that decisions of Petitioner's trial counsel- particularly to call certain witnesses and pursue legal claims-are within the sound discretion of counsel as tactical strategy. Furthermore, the Government argues that Petitioner was not prejudiced by trial counsel because Petitioner, in addition to being a practicing attorney and active member of the Virginia bar, timely filed his Notice of Appeal pro se and later obtained new appellate counsel. As evidenced by the signed Plea Agreement, signed Statement of Facts, and Rule 11 hearing and colloquy, the Government contends that Petitioner's plea was both voluntary and intelligent, and Petitioner's claims that he is legally and factually innocent are not available to collateral attack under a § 2255 motion. The Government refutes as factually untrue Petitioner's allegations that Petitioner's trial counsel did not review the plea with him and that Petitioner did not answer during the colloquy. Additionally, the Government denies any spoliation of evidence by either party, argues that all evidence, including Brady and Giglio materials, were exchanged in discovery, and claims that no suppression of said materials occurred.


         A. Section 2255 Generally

         Section 2255 of Title 28 of the United States Code provides prisoners in federal custody a means of collateral attack against their sentence as follows:

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(a). It is within the discretion of the district court to deny § 2255 motions without a hearing. Raines v. United States, 423 F.2d 526, 529-31 (4th Cir. 1970). When deciding a § 2255 motion, the court must grant a prompt hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, " id § 2255(b); however, the petitioner bears the burden of proving his claim by a preponderance of the evidence, see Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Additionally, pro se filers are entitled to a more liberal construction of their pleadings. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).

         Motions under § 2255 "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178 (1947). For this reason, issues already fully litigated on direct appeal may not be raised again under the guise of a collateral attack. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976). Ineffective assistance of counsel claims, however, should generally be raised in a collateral motion instead of on direct appeal. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).

         B. Timeliness of Section 2255 Motion

         Before a § 2255 motion proceeds to the merits, it must surpass a time-bar. Title 28, United States Code, Section 2255 provides in pertinent part:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-

(1) the date on which the judgment of conviction becomes 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 be 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 exercise of due diligence.

28 U.S.C. § 2255(f). To determine whether Petitioner has timely filed his motion, the Court must measure one year from the most recent date provided by § 2255(f) subsections (1) through (4).

         C. Ineffective ...

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