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Forde v. United States

United States District Court, E.D. Virginia, Newport News Division

August 17, 2016

KEVIN FORDE, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No. 4:11cr89

          OPINION and ORDER


         This matter is before the Court on Kevin Forde's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Petitioner's § 2255 Motion and associated memorandum advance five claims, all alleging ineffective assistance of counsel. After reviewing the written record, the Court finds that an evidentiary hearing is unnecessary because the Court's rulings do not turn on credibility determinations, and the record conclusively demonstrates that Petitioner is not entitled to any relief. See R. Gov. § 2255 Proc. in U.S. Dist. Cts. 8(a). For the reasons discussed below, Petitioner's § 2255 motion is DENIED.


         On August 15, 2012, Petitioner and six co-conspirators were charged with various federal criminal offenses in a second superseding indictment arising from a large drug trafficking conspiracy.[1] ECF No. 716. Petitioner pled not guilty to the criminal charges and proceeded to a joint jury trial with co-defendant Alano Blanco. At trial, the evidence revealed Petitioner's long-term involvement in drug trafficking, and on November 7, 2012, the jury returned a verdict finding Petitioner guilty of three of the four charged offenses, including a drug trafficking conspiracy in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A).[2] ECF No. 931. On March 21, 2013, Petitioner was sentenced by this Court to 300 months imprisonment.

         Subsequently, Petitioner's counsel filed a Notice of Appeal to the Fourth Circuit. ECF No. 1083. On appeal, defense counsel argued that this Court erred by denying a previously filed motion to sever Petitioner's case from his co-defendants' cases. On March 10, 2014, the Fourth Circuit issued an unpublished opinion affirming the judgment of this Court and denying Petitioner's motion to file a pro se supplemental brief in support of his appeal. ECF No. 1148.

         Petitioner thereafter timely filed the instant § 2255 motion, affidavit, and memorandum in support, advancing five claims, the first four challenging trial counsel's performance and the fifth challenging appellate counsel's performance. ECF Nos. 1170, 1211. The Government filed a brief in opposition to Petitioner's § 2 2 55 motion, ECF No. 1215, and Petitioner filed a reply brief. ECF No. 1276. This matter is therefore ripe for review.


         A federal prisoner, in custody, may collaterally attack his sentence or conviction by moving the district court "to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). To obtain such relief, a petitioner must prove by a preponderance of the evidence that his sentence or conviction was "imposed in violation of the Constitution or laws of the United States, " that the district court "was without jurisdiction to impose such sentence, " that the sentence exceeds "the maximum authorized by law, " or that the sentence or conviction is "otherwise subject to collateral attack." Id.; see Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Because a § 2255 motion "is ordinarily presented to the judge who presided at the original conviction and sentencing ... the judge's recollection of the events at issue" may inform the resolution of the motion. Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977).

         A § 2255 motion is, in essence, a statutory federal habeas corpus action that enables a petitioner to collaterally attack his sentence or conviction through the filing of a new proceeding, as contrasted with a direct appeal. United States v. Hadden, 475 F.3d 652, 663 (4th Cir. 2007). The existence of the right to pursue a collateral attack does not displace a direct appeal as the "usual and customary method of correcting trial errors." United States v. Allgood, 4 8 F.Supp.2d 554, 558 (E.D. Va. 1999) .

         Although a petitioner advancing new claims asserted for the first time in a § 2255 motion must generally "clear a significantly higher hurdle than would exist on direct appeal, " United States v. Frady, 456 U.S. 152, 166 (1981), a freestanding claim of ineffective assistance of counsel is properly asserted for the first time in a § 2255 motion, see United States v. King, 119 F.3d 290, 295 (4th Cir, 1997) ("[I]t is well settled that la claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance.'" (quoting United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992))). Such rule exists because the Federal Rules Governing § 2255 Proceedings permit expansion of the record, which is generally unavailable on direct appeal. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010) (citing Massaro v. United States, 538 U.S. 500, 504-06, (2003)).

         The Sixth Amendment to the Constitution of the United States provides that "the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The United States Supreme Court has interpreted the right to counsel as providing a defendant "(the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686 (1984) (emphasis added) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)) . To obtain relief based on an allegation of ineffective assistance, a petitioner must establish both that: (1) counsel's performance was so deficient that it fell below an objective standard of reasonableness; and (2) counsel's inadequate performance caused the petitioner prejudice. Id. at 687-88. " [U]nsubstantiated and largely conclusory statements" are insufficient to carry a petitioner's burden as to the two prongs of the Strickland test. United States v. Turcotte, 405 F.3d 515, 537 (7th Cir. 2005); see United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) ("[V]ague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court.") (quotation marks and citation omitted).

         Satisfying the first prong of Strickland requires a petitioner to establish that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Reviewing courts strongly presume that counsel exercised reasonable professional judgment, and only in "relatively rare situations" will a § 2255 motion establish that, "vin light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.'" T-:ce v. Johnson, 647 F.3d 87, 102 (4th Cir. 2011} (quoting Strickland, 466 U.S. at 690). As it is all too easy to challenge an act, omission, or strategy, once it has proven unsuccessful, "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. A petitioner's showing of deficient performance must therefore go beyond establishing that counsel's performance was below average, because "effective representation is not synonymous with errorless representation." Springer v. Collins, 586 F.2d 329, 332 (4th Cir. 1978); see Strickland, 466 U.S. at 687. As recently reiterated by the Fourth Circuit, the "basic lesson" of Strickland is not just deference but high deference, and attorneys are permitted to "be selective and strategic without risking an ineffective assistance of counsel claim." United States v. Mason, 7 74 F.3d 824, 828, 830 (4th Cir. 2014) (citations omitted).

         The second prong of Strickland requires a petitioner to "affirmatively prove prejudice, " which requires a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 4SS U.S. at ¶ 93-94 . "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694 . If a petitioner fails to prove either of the two prongs of the Strickland test, the court need not evaluate the other prong. United States v. Roane, 378 F.3d 382, 404 (4th Cir. 2004} .


         A. Ground One

         Petitioner's first claim alleges that both his trial counsel (Mr. Lewis) and his previously appointed trial counsel (Mr. Jones) were ineffective for failing to challenge "the government's non-compliance with . . . the Speedy Trial Act." ECF No. 1170, at 10. Contrary to Petitioner's assertions in his reply brief, an evidentiary hearing is not necessary on such issue, nor does the Court need to expand the record through the consideration of affidavits from defense counsel, as the record conclusively demonstrates that Petitioner's claim fails to satisfy either prong of the Strickland test.

         First, it should be noted that Petitioner's speedy-trial concerns have been well-litigated in this case, and were addressed both through written briefing and through arguments heard in open court prior to Petitioner's trial. To the extent Petitioner's § 2255 motion and reply brief argue that his original counsel was deficient for allowing Petitioner's trial to be set outside of the 7 0-day speedy trial period, such argument fails both prongs of Strickland as this case was properly deemed "complex" from the outset, with all parties needing additional time to prepare, as evidenced, in part, by the fact that the original indictment charged more than fifteen defendants with multiple federal crimes associated with a drug trafficking conspiracy spanning more than a decade, ECF No. 2; see 18 U.S.C. § 3161 (h) (7); see also ECF No. 1121, at 14-16 (discussing the complexity of the case, including the 90 days of Government wiretaps, the financial investigation, phone records, and the number of individuals that provided information to the Government about Petitioner). Accordingly, Petitioner's original counsel was not constitutionally deficient for failing to object to the Court's original decision to set the case outside of the speedy trial deadline, and no prejudice resulted from defense counsel's handling of such matter.

         The Court reaches the same conclusion regarding allegations of ineffective assistance with respect to a subsequent continuance of the trial date, which moved Petitioner's trial from April of 2012 until September of 2012. Notably, such continuance was requested by counsel for a co-defendant, not the Government, and counsel for Mr. Forde agreed to such continuance, ECF No. 521, later explaining in open Court that he had agreed to it after considering that "there might be some strategic delay in looking for witnesses for a potential alibi in a continuance, so there was no objection from defense counsel at that time." ECF No. 1121, at 10; see United States v. Dehlinger, 740 F.3d 315, 325 (4th Cir. 2 014) ("The Sixth Amendment does not provide a basis for disappointed clients to launch after-the-fact attacks on the objectively reasonable strategic decisions of their trial attorneys."); cf . 18 U.S.C. § 3161 (h)(6) (indicating that the speedy trial calculation does not include a "reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted"). Moreover, at the urging of Petitioner, on May 22, 2012, Mr. Jones moved to dismiss the indictment on behalf of Mr. Forde, alleging a speedy trial violation, even though counsel appeared to believe that such motion was unlikely to succeed. ECF No. 587. At a joint hearing addressing such motion and two other motions, including a pro se filing submitted by Mr. Forde that was construed as a motion seeking to replace Mr. Jones as appointed counsel, Mr. Forde provided the following sworn explanation:

THE DEFENDANT; Okay, Your Honor. I have spoken with Mr. Jones about this process beforehand. Me getting the state habeas paperwork was because of me trying to shed light on the situation feeling that I had [to] take things into my own hand because me and Mr. Jones was clashing on whether I could file for dismissal, or back to my second bond hearing, I wanted to file for a second bond hearing which he didn't feel like we should do or we could do or we wouldn't get. And through that process I felt like, well, I got to do something, so I asked the j ail to give me some type of paperwork so I could speak to the court for myself. . . .
So on the dismissal it was just to shed light on the motion that I felt like my speedy trial right violations - - rights was violated, me being in j ail over seven, eight months now and not getting my trial. Mr. Jones let the government have a continuance, he didn't object to the continuance when it was brought to his attention that they wanted one.
THE COURT: Now that was, that was the motion filed by the two other defendants; in other words, two of your co-defendants. First, the trial was set April 30th after it was declared to be complex -
THE DEFENDANT: Yes, Your Honor.
THE COURT: -- a complex case. And you didn't object to the trial being set on April 3 0th, the first trial ...

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