United States District Court, W.D. Virginia, Danville Division
Jackson L. Kiser Senior United States District Judge
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
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'
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.)
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.)
§ 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.
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.
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.
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.
Knowing and Voluntary Waiver
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