United States District Court, E.D. Virginia, Alexandria Division
RUTH A. MILLER Petitioner,
UNITED STATES OF AMERICA, Respondent. Civil No. 1:16-cv-825
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Petitioner Ruth A.
Miller's Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255.
November 19, 2013, Petitioner Ruth Miller pleaded guilty to
one-count information charging her with conspiracy to commit
sex trafficking in violation of 18 U.S.C. § 1594(c). In
the plea agreement, Petitioner explicitly waived her right to
appeal her "conviction and any sentence within the
statutory minimum.,, The matter was initially set
for sentencing on March 28, 2014, but was continued until May
23, 2014. Petitioner failed to appear for her May 23
sentencing date. Upon learning from Probation that Petitioner
tampered with and removed her GPS monitoring bracelet, the
Court issued a bench warrant for her arrest.
was arrested on October 11, 2014 and appeared in court on
October 14, 2014. On October 14, Petitioner's counsel,
Daniel Lopez, moved to withdraw from the case, and the Court
appointed Todd M. Richman, an Assistant Federal Public
Defender, to represent Petitioner in connection with her bond
revocation and sentencing for the underlying conviction. On
December 19, 2014, Petitioner was sentenced to 84 months of
imprisonment followed by 5 years of supervised release, which
is well below the life sentence recommended in the
guidelines. Petitioner did not appeal.
14, 2016, Petitioner filed a motion requesting an attorney to
review her case in light of the Supreme Court's decision
in Johnson v. United States, 135 S.Ct. 2551 (2015).
Petitioner filed the instant motion under 28 U.S.C. §
2255 on June 27, 2016. Her motion states two grounds for
relief: (1) ineffective assistance of counsel for failure to
file an appeal on her behalf, and (2) the statute under which
she was convicted was unconstitutionally vague based on
Johnson v. United States, 135 S.Ct. 2551 (2015).
28 U.S.C. § 2255, a petitioner may attack his sentence
or conviction on the grounds that it was imposed in violation
of the Constitution or laws of the United States, that the
court was without jurisdiction to impose such a sentence,
that the sentence exceeded the maximum authorized by law, or
that the sentence otherwise is subject to collateral attack.
28 U.S.C. § 2255; see also Hill v. United
States, 368 U.S. 424, 426-27 (1962). The petitioner
bears the burden of proving grounds for collateral relief by
a preponderance of the evidence. Vanater v. Boles,
377 F.2d 898, 900 (4th Cir. 1967); Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958).
first ground for relief, Petitioner asserts that she received
ineffective assistance of counsel because her attorney failed
to file an appeal following her plea of guilty. This claim is
both time-barred and without merit. Under § 2255(f), a
petitioner may seek relief within one year of the date on
(1) ... judgment of conviction becomes final;
(2) ... impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a
motion by such governmental action;
(3) ... right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
(4) ... facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.
judgment became final in January 2015, so (f)(1) does not
apply to her June 2016 petition. Petitioner does not argue in
her first claim that the government prevented her from filing
earlier or that the Supreme Court recently recognized a new
right, so (f) (2)-(3) do not apply. While (f) (4) is the only
provision that conceivably applies, Petitioner's first
claim is also time-barred under (f)(4) because she did not
exercise reasonable diligence in pursuing her claim. At the
time her conviction became final, Petitioner knew that her
attorney would not be filing an appeal yet she did not direct
him otherwise. Finally, Petitioner does not make any argument
for equitable tolling of the statute of limitations.
Accordingly, Petitioner's claim is time-barred.
even if Petitioner's claim was not time-barred, her claim
for ineffective assistance of counsel lacks merit. In
Strickland v. Washington, 466 U.S. 668, 687 (1984),
the Supreme Court held that "[t]he proper standard for
judging attorney performance is that of reasonably effective
assistance." The Strickland standard is
evaluated using a two-part test: first, a petitioner must
demonstrate that counsel's performance fell below an
objective standard of reasonableness; second, a petitioner
must show that "the deficient performance prejudiced the
defense." Id. at 687-88. "Failure to make
the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim."
Id. at 700.
first prong of the test, objective reasonableness is
"simply reasonableness under prevailing professional
norms" regarding the representation. Id. at
688. There is a strong presumption that counsel rendered
adequate assistance and made all significant decisions with
reasonable professional judgment. Id. at 689-90;
see, e.g., United States v. Terry,
366 F.3d 312, 316-18 (4th Cir. 2004); Matthews v.
Evatt, 105 F.3d 907, 919 (4th Cir. 1997). Review of
counsel's performance must be comprehensive and not
narrowly limited to counsel's failings in determining
whether the presumption of adequate assistance has been
overcome, Strick ...