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United States v. Oxendine

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

August 17, 2016


          Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States;

          James Thomas Oxendine, Pro Se Defendant.



         The defendant, James Thomas Oxendine, proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, based on claims of ineffective assistance of counsel. The government filed a Motion to Dismiss, and the time for Oxendine to respond has expired, making the matter ripe for disposition. After reviewing the record, I will grant the United States’ Motion to Dismiss.


         Oxendine and twelve codefendants were named in a multi-count Indictment. Oxendine was charged with conspiring to distribute and possessing with the intent to distribute 280 grams or more of cocaine base, and five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) and 841(b)(1)(C) (“Count One”); and distributing and possessing with intent to distribute a mixture or substance containing cocaine base, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (“Count Six”). The government filed an Information pursuant to 21 U.S.C. § 851, giving Oxendine notice that he was subject to enhanced penalties based on three prior state felony drug convictions. (Notice of Enhanced Punishment, ECF No. 86.)

         Oxendine pleaded guilty, pursuant to a written Plea Agreement, to a lesser-included offense of Count One - conspiring to possess with intent to distribute cocaine base and cocaine - and to Count Six. (Plea Agreement 1, ECF No. 290.) The Plea Agreement provided that the conspiracy involved at least 840 grams of cocaine base, resulting in a base offense level of 34 under the Sentencing Guidelines. (Id. at 4.) Under the terms of the Plea Agreement, the government agreed to request dismissal of the § 851 Information. (Id. at 3.) Oxendine and the government both agreed not to seek a sentence outside of the guideline range. (Id. at 4.)

         At the guilty plea hearing, Oxendine affirmed that he did not have any health problems and counsel stated that she had no doubt as to Oxendine’s competency to enter a plea. (Plea Hr’g Tr. 3, ECF No. 517.) Oxendine stated that he had had an adequate opportunity to read and discuss the Plea Agreement with counsel before signing it. (Id. at 4.) Oxendine further affirmed that he was “fully satisfied with [his] attorney’s representation.” (Id.) The prosecutor summarized the terms of the Plea Agreement. (Id. at 4-7.) Both the prosecutor and the court advised Oxendine that he faced a maximum statutory penalty of not more than twenty years’ imprisonment each on both Counts One and Six. (Id. at 5, 9.)

         Oxendine affirmed his understanding that by pleading guilty, he gave up his right to appeal and to collaterally attack his sentence except on matters that cannot be waived under the law or that allege ineffective assistance of counsel. (Id. at 8.) Oxendine affirmed that no one had made any promises to him other than those contained in the Plea Agreement to cause him to plead guilty and that no one had threatened him or attempted to force him to plead guilty. (Id.) The prosecutor stated that the government had evidence that Oxendine entered into an agreement with codefendants to distribute cocaine and cocaine base in Bristol, Virginia, and that a confidential informant bought cocaine base from a middleman who purchased the drugs from Oxendine. (Id. at 14.) Oxendine did not dispute the facts against him, and pleaded guilty. (Id.) I found that Oxendine was fully competent and capable of entering an informed plea and that his guilty plea was knowingly and voluntarily made. (Id. at 14-15.)

         The Presentence Investigation Report (“PSR”) recommended a total offense level of 29[1] and a criminal history category of VI because Oxendine qualified as a career offender under U.S.S.G. § 4B1.1(b), resulting in a guideline imprisonment range of 151 to 188 months. (PSR ¶ 82, ECF No. 426.) Oxendine’s counsel filed a Sentencing Memorandum requesting that Oxendine be sentenced to 151 months’ incarceration, a sentence that she argued was “sufficient, but not greater than necessary . . .” to fulfill the purposes of the sentencing statute. 18 U.S.C. § 3553(a). I agreed, adopted the PSR and sentenced Oxendine to 151 months each for Counts One and Six, to run concurrently. (Judgment 2, ECF No. 423.) He did not appeal.

         In his § 2255 motion, Oxendine alleges that counsel provided ineffective assistance by: (1) denying his right to a preliminary hearing; (2) waiving his right to a speedy trial without his consent; (3) advising him to plead guilty to Count Six; (4) writing his acceptance of responsibility statement without his consent; and (5) failing to challenge the drug weight in the Plea Agreement. (Mot. to Vacate 4, 5, 7, 8, ECF No. 510.) Oxendine also filed a Motion to Supplement his § 2255, arguing, in support of his third alleged claim of error, that the government did not have enough evidence to support Count Six.[2]


         To state a viable claim for relief under § 2255, a defendant 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 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(a). Oxendine 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).

         The proper vehicle for a defendant to raise ineffective assistance of counsel claims is by filing a § 2255 motion. United States v. Baptiste,596 F.3d 214, 216 n.1 (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 v. Washington,466 U.S. 668, 686 (1984). Accordingly, in order to establish a viable claim of ineffective assistance of counsel, a defendant must satisfy a two-prong analysis ...

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