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United States v. Crowe

United States District Court, W.D. Virginia, Danville Division

August 5, 2016



          Jackson L. Kiser Senior United States District Judge

         Petitioner Patrick Vincent Crowe, a federal inmate proceeding pro se, filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, challenging his 120-month sentence following a guilty plea. Crowe claims that he received ineffective assistance of counsel during plea negotiations and sentencing. The government filed a motion to dismiss, and Crowe responded, making this matter ripe for disposition. I conclude that Crowe's ineffective assistance of counsel claims fail to meet the exacting standard set forth in Strickland v. Washington, 466 U.S. 668, 669 (1984), and I grant the government's motion to dismiss.


         Crowe was charged in a two-count Information with theft and embezzlement from an employee benefit plan, in violation of 18 U.S.C. § 664 ("Count One") and willful failure to pay over withheld federal payroll taxes, in violation of 26 U.S.C. § 7202 ("Count Two"). These charges originated after Crowe purchased Southside Manufacturing Corporation and appropriated money that should have been deposited in an employee benefit pension plan and also failed to pay to the Internal Revenue Service ("IRS") taxes withheld from employees' paychecks.

         Crowe obtained counsel who negotiated a written Plea Agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Crowe agreed to plead guilty to Counts One and Two in exchange for a set sentence of 120 months' imprisonment. The Plea Agreement stated that Crowe's counsel had informed him of the nature and elements of the charged offenses. (Plea Agreement at 1, ECF No. 6.) It also noted that his 120-month sentence took into account a violation of the terms of his supervised release in Florida, following a prior conviction for similar violations of the Employee Retirement Income Security Act and noted that there were "no state criminal charges pending or contemplated against" him. (Id. at 3.)

         During his guilty plea hearing, Crowe affirmed that he had ample time to consult with counsel before signing the Plea Agreement and that he understood the charges against him. (Plea Hr'g Tr. at 5-6, 8, ECF No. 28.) Crowe further affirmed that he had no "complaints about the manner in which [his] lawyers ha[d] represented [him]." (Id.) I noted that Crowe faced a maximum penalty of five years' imprisonment on each of Counts One and Two. (IcL at 11.) Crowe stated that he understood and that he and the government had agreed "on a binding term of incarceration often years." (IcL at 12.) Crowe affirmed his understanding that by pleading guilty, he gave up his right to appeal and to collaterally attack his sentence except for matters that cannot be waived by law or that allege ineffective assistance of counsel. (IcL at 14.) I found that Crowe understood the nature and consequences of his actions and that his guilty plea was made voluntarily. (IcL at 17.) I sentenced Crowe to 120 months' imprisonment pursuant to Rule 11(c)(1)(C) and he did not appeal. (Id. at 16, 19.)

         In his § 2255 motion, Crowe alleges that counsel provided ineffective assistance by: (1) failing to discuss with him all of the charges that he faced and potentially could face in state court; (2) failing to request discovery; (3) failing to present exculpatory evidence to the government during plea negotiations; (4) failing to object to the fact that he was selectively prosecuted; and (5) failing to argue that he was not guilty of most of the charged conduct because he was removed as president of Southside on September 13, 2013.


         To 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. Crowe 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).


         Criminal defendants are entitled to "the effective assistance of competent counsel, " McMann v. Richardson, 397 U.S. 759, 771 (1970), and the proper vehicle for raising an ineffective assistance of counsel claim is by filing a § 2255 motion. United States v. Baptiste, 596 F.3d 214, 216 n.l (4th Cir. 2010). However, ineffective assistance claims are not lightly granted; "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. Accordingly, in order to establish a viable claim of ineffective assistance of counsel, a defendant must satisfy a two-prong analysis showing both that counsel's performance fell below an objective standard of reasonableness and establishing prejudice due to counsel's alleged deficient performance. Id. at 687. When considering the reasonableness prong of Strickland, courts apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689; Gray v. Branker, 529 F.3d 220, 228-29 (4th Cir. 2008). Counsel's performance is judged "on the facts of the particular case, " and assessed "from counsel's perspective at the time." Strickland. 466 U.S. at 689, 690.

         To satisfy the prejudice prong of Stickland, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional error, the outcome of the proceeding would have been different. Li at 694. A defendant who has pleaded guilty must demonstrate that, but for counsel's alleged error, there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland. 466 U.S. at 694.

         A. Knowing and Voluntary Waiver

         Crowe first argues that counsel failed to adequately explain the charges against him. Specifically, he claims that he was under the impression that he would be facing state charges in addition to Counts One and Two. He claims that counsel induced him to plead guilty by suggesting that he was negotiating a global settlement that included Counts One and Two and any potential state charges. In fact, Crowe argues, no state charges were going to be filed against him because the state was not investigating him. Accordingly, Crowe ...

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