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Allen v. United States

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

August 12, 2016

JONATHAN RAY ALLEN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          USA, Plaintiff, represented by William David Muhr, United States Attorney's Office.

          MEMORANDUM OPINION AND ORDER

          RAYMOND A. JACKSON, District Judge.

         Before the Court is a pro se petition 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 Jonathan Ray Allen ("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.

         I. FACTUAL AND PROCEDURAL HISTORY

         Petitioner was named in a twenty-one count indictment on November 16, 2011. Count One charged Petitioner with Conspiracy to Interfere with Commerce by Robbery, in violation of 18 U.S.C. § 1951(a). Counts Two, Four, Six, Eight, Ten, Twelve, Fourteen, Sixteen, Eighteen, and Twenty charged him with Interference with Commerce by Robbery, in violation of 18 U.S.C. § 1951(a). Counts Three, Five, Seven, Nine, Eleven, Thirteen, Fifteen, Seventeen, Nineteen, and Twenty-One charged him with Use, Carry, and Brandish a Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). On December 21, 2011, Petitioner pleaded not guilty to all charges.

         On March 20, 2012, Petitioner went to trial and upon motion by the United States, the Court dismissed Counts Eighteen and Nineteen. After a three day trial, Petitioner was found guilty on all remaining charges. On September 19, 2013, the Court sentenced Petitioner to a total of three hundred eighty-four (384) months and eight days imprisonment. The term consisted of one day per Counts One, Two, Four, Six, Eight, Ten, Twelve, Fourteen, Sixteen, and Twenty to be served concurrently; eighty-four (84) months imprisonment on Count Three to be served consecutively with Count One; three hundred (300) months imprisonment on Count Five to be served consecutive to Count Three, and one day per Counts Seven, Nine, Eleven, Thirteen, Fifteen, Seventeen, and Twenty-One to be served consecutively with each other and Count Five. ECF No. 147. The Court additionally required Petitioner to pay restitution in the amount of $18, 463 to the financial institutions he harmed as a result of his crimes. ECF No. 145.

         On September 20, 2013, Petitioner appealed his sentence to the United States Court of Appeals for the Fourth Circuit. In his appellate brief, Petitioner argued this Court should have suppressed the out-of-court witness identifications made during trial because the pre-trial photo line-ups used in the identifications of Petitioner were unduly suggestive and unreliable. The Fourth Circuit rejected Petitioner's appeal and affirmed the judgement. United States v. Allen, 576 Fed.Appx. 281, 282 (4th Cir. 2014) (per curiam).

         Petitioner filed the current motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 on September 11, 2015. On November 2, 2015, the United States filed its Response. ECF No. 183. Petitioner subsequently filed a Reply on December 16, 2015. ECF No. 186.

         Petitioner argues that his former defense attorney provided ineffective counsel. Specifically, Petitioner alleges that his counsel failed to acknowledge the ambiguity of the firearms statute in question, 18 U.S.C. § 924(c)(1)(A)(ii), object to the multiple sentences Petitioner received, and to move for a judgement of acquittal on the subsequent convictions. Petitioner also argues that counsel failed to appeal. The United States counters that the Petition is wholly without merit and counsel cannot be faulted for failing to raise or argue a meritless claim.

         II. LEGAL STANDARDS

         A. Section 2255

         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 judgement of conviction, the movant bears the burden of proving his claim by a preponderance of evidence. Miller v. United Slates,261 F.2d 546, 547 (4th Cir. 1958). Pro se filers, such as 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 ...


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