United States District Court, W.D. Virginia, Harrisonburg Division
Glen E. Conrad Chief United States District Judge.
Ross Cousins, a federal inmate proceeding pro se, has moved
in a fourth successive motion, to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. The
government has filed a motion to dismiss, arguing that the
court does not have jurisdiction to review a successive
§ 2255 motion and the petition is time-barred. Cousins
has responded, making this matter ripe for consideration.
Upon review of the record, the court concludes that it lacks
jurisdiction to review the motion and that the
government's motion to dismiss must be granted.
February 22, 2006, a grand jury returned a multi-count
indictment, charging Cousins with distribution of
methamphetamine (Count One); possession of a firearm in
furtherance of a drug trafficking offense (Counts Two, Five
and Eight); possession of a firearm while being a user of
controlled substances (Counts Three, Six, and Nine); and
possession with intent to distribute methamphetamine
("Counts Four and Seven").
signed a written plea agreement in which he agreed to plead
guilty to Counts One through Six and the government agreed to
move for dismissal of the remaining counts, Under the plea
agreement, Cousins waived his right to appeal the judgment
and sentence and his right to bring a § 2255 motion, but
reserved the right to appeal the court's rulings on his
pretrial motions to suppress certain evidence as illegally
seized. On August 8, 2007, the court sentenced Cousins to 406
months' imprisonment. On appeal, the United States Court of
Appeals for the Fourth Circuit upheld the denial of the
suppression motion and dismissed Cousins' other
suppression claims as waived by the plea agreement.
United States v. Cousins, 291 F.App'x 497, 499
(4th Cir. 2008).
2, 2009, Cousins filed his first § 2255 motion, raising
five claims of ineffective assistance of counsel related to
the suppression motion and guilty plea. The court denied
relief on the motion, finding that Cousins' claims of
ineffective assistance did not render his guilty plea invalid
and that his plea agreement waiver of his right to file a
§ 2255 motion barred review of his ineffective
assistance of counsel claims on the merits. Cousins filed a
motion for reconsideration, which the court denied. (Order
Denying Recon. at 4, ECF No. 167). On appeal, the Fourth
Circuit Court of Appeals denied a certificate of
appealability and dismissed the appeal. (Order at 2, ECF No.
174.) Cousins filed two additional motions for
reconsideration, both of which were construed as successive
§ 2255 motions and denied because the court was without
the authority to review them as Cousins failed to obtain
certification from the Fourth Circuit. (Mots. Recons., ECF
Nos. 201, 224.) Cousins appealed both orders to the Fourth
Circuit without success, and the Fourth Circuit denied
authorization to file a successive § 2255 motion.
United States v. Cousins. 539 F.App'x 115, 116
(4th Cir. 2013); United States v. Cousins. 580
F.App'x 226 (4th Cir. 2014).
October 14, 2014, the Department of Justice issued an
internal memorandum providing guidance to federal prosecutors
about how to litigate certain cases involving plea agreements
where the defendant waived the right to bring § 2255
claims of ineffective assistance of counsel. Memorandum from
Deputy Att'y Gen. James M. Cole to Fed. Prosecutors,
Dep't Policy on Waivers of Claims of Ineffective
Assistance of Counsel (Oct. 14, 2014), available at
For cases in which a defendant's ineffective assistance
claim would be barred by a previously executed waiver,
prosecutors should decline to enforce the waiver when defense
counsel rendered ineffective assistance resulting in
prejudice or when the defendant's ineffective assistance
claim raises a serious debatable issue that a court should
Id. Following the issuance of this memorandum,
Cousins filed with the Fourth Circuit a "motion under
§ 2244 for an order authorizing the district court to
consider a second or successive application for relief under
28 U.S.C. § 2255." (Order, ECF No. 240) The Fourth
Circuit denied the motion.
then filed his current § 2255 motion arguing that
counsel provided ineffective assistance by (1) advising
Cousins to accept the § 2255 waiver in his plea
agreement which created a conflict of interest; (2) failing
to file a motion to suppress firearm evidence; (3) failing to
challenge the constitutionality of his arrest; (4) failing to
challenge the constitutionality of the first police search of
the trunk of his car; and (5) failing to challenge the
constitutionality of the second police search of the trunk of
his car. Cousins also argues that the plea agreement was
unconstitutional because it induced defense counsel to
violate the rules of professional conduct and was tainted by
fraud. On November 9, 2015, Cousins filed an amended §
2255 motion arguing an additional claim that "the
government consider dismissing his second 924(c) charge, and
granting him time served. . . ." (Amend. § 2255
motion 1, ECF No. 249.) The government responded, arguing
that the court does not have jurisdiction to review the
motion because it is successive and Cousins has not obtained
a certificate of appealability from the Fourth Circuit.
(Resp. 4, ECF No. 253.) In addition, the government argues
that the motion is time-barred. (Id. at 7.) For the
following reasons, the court agrees with the government.
state a viable claim for relief under § 2255, a
petitioner 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 a 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). Cousins 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).
has filed three previous § 2255 motions. In order for
this court to have jurisdiction to hear a successive §
2255 motion, a defendant must receive a certificate of
appealability from the Fourth Circuit. 18 U.S.C.
§§ 2255(h)(1) and (2). The Fourth Circuit denied a
certificate of appealability in this case on ...