United States District Court, E.D. Virginia, Norfolk Division
Plaintiff, represented by William David Muhr, United States
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON, District Judge.
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 Â§ 2255 Motion is DENIED.
FACTUAL AND PROCEDURAL HISTORY
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.
Â§ 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. Â§ 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. Â§ 924(c)(1)(A)(ii). On December 21, 2011, Petitioner
pleaded not guilty to all charges.
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.
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
filed the current motion to Vacate, Set Aside, or Correct
Sentence, pursuant to 28 U.S.C. Â§ 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.
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. Â§ 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.
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
28 U.S.C. Â§ 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 Â§ 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. Â§ 2255(b). Motions under Â§ 2255 "will not be
allowed to do service for an appeal." Sunal v.
Large,332 U.S. 174, 178 (1947). As a result, issues