United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski United States District Judge
Lenord Minus, a federal inmate proceeding pro se, has filed a
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. Minus alleges that his counsel told
him that he qualified as a career offender, prompting his
decision to proceed to trial. By order entered June 8, 2016,
the court concluded that it was unable to resolve the issue
on the briefs and ordered an evidentiary hearing. Following
that hearing, and after reviewing the record and briefs from
Minus and the government, the court concludes that Minus has
not stated any meritorious claims for relief under §
2255 and that the government's motion to dismiss must be
April 19, 2012, a federal grand jury indicted Minus and
co-defendants in a 29-count indictment. Minus was charged
with conspiring to distribute and manufacture 280 grams or
more of a mixture and substance containing a detectable
amount of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A) and six counts of
distribution of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C). The court appointed
counsel for Minus. During the course of representation,
counsel and the government negotiated a plea agreement in
which Minus would agree to plead guilty to the conspiracy
charge and one count of distribution of cocaine and the
government would agree to dismiss the remaining charges. The
plea agreement neither stipulated a guideline range nor
suggested that Minus was a career offender. Resp. § 2255
Mot. Ex. A. at 7, ECF No. 601-1. Minus rejected the plea
offer and proceeded to trial. The jury returned a guilty
verdict on the conspiracy charge and five of the six
to sentencing, a Presentence Investigation Report
("PSR") was prepared and concluded that Minus'
total offense level was 34 and his criminal history category
was V, resulting in an advisory guideline range of 235 to 293
months' incarceration. Counsel filed a sentencing
memorandum requesting a downward departure from his
sentencing range to "ten years or more" based on
Minus' relatively minor role in the conspiracy and the
more limited drug weigh for which he was directly
responsible. Sent. Mem. at 13, ECF No. 498.
court held a sentencing hearing on May 22, 2013, and adopted
the PSR. The court varied downward because Minus played a
lesser role than some of his co-defendants in the conspiracy
and because he had no prior drug convictions, and sentenced
him to 180 months. Sent. Hr'g Tr. at 52, ECF No. 550.
appealed asserting that the evidence was insufficient to
establish either his guilt or his drug-weight responsibility.
The Fourth Circuit Court of Appeals affirmed his conviction
and sentence. Minus filed the instant § 2255 motion,
arguing that his trial counsel provided ineffective
assistance because she told him that he qualified as a career
offender, which prompted him to go to trial. In fact, he did
not qualify as a career offender and he argues that had he
known that, he would have accepted a guilty plea. Minus
attached an affidavit to his § 2255 motion, in which he
avows that he learned that he was not a career offender only
postconviction, after reviewing his PSR. Aff. ¶ 8, ECF
No. 580-2. The government responded, and based on an
affidavit from Minus' counsel, argued that counsel told
him well before trial that he did not qualify as a career
August 19, 2016, the court held an evidentiary hearing to
resolve this factual dispute. At the hearing, Minus testified
that his counsel told him, early in the proceedings, that he
was a career offender but did not explain why she believed he
qualified as a career offender or what effect being a career
offender would have on his sentence. He referenced a June 29,
2012 letter that counsel sent to him shortly after she began
her representation of Minus that stated "I have also
indicated to you that with your criminal record, it is likely
that you will qualify for a career offender enhancement of
your sentencing guideline amount, and this career offender
classification will substantially increase the length of your
prison sentence." § 2255 Ex. 3 at 4, ECF No. 580-3.
He also stated that counsel never reviewed his PSR with him
and only at sentencing did he find out that his guideline
range was 235 to 293 months. In addition, he testified that
at the date of his sentencing he still believed that he
qualified as a career offender. Minus claimed that at
sentencing, counsel told him for the first time that the
government had proposed a plea offer often years and that had
he known about that plea offer, he would have accepted it.
trial counsel also testified. She stated that in an abundance
of caution early in the case, she sent the letter to Minus
informing him that he would "likely" qualify as a
career offender based on information that she received from
the government. But she soon realized that he did not qualify
as a career offender and told him so during the first three
or four meetings with him. Counsel testified that by July 20,
2012, the career offender enhancement was "off the
table" and she did not mention it in any
further correspondence with Minus because it was a non-issue
and he knew that the enhancement did not apply to him.
Counsel also testified that she reviewed the PSR with Minus
prior to sentencing. She stated that she never received a
proposed ten-year plea agreement from the government. She
received one written plea agreement, which she conveyed to
Minus, but he had no interest in accepting it or pleading
guilty at all. Counsel testified that in negotiating the plea
agreement, she requested an extension of time to respond to
it and confirmed with the government at that time that Minus
was not a career offender. In response to questioning by the
court, the Assistant United States Attorney noted that he had
no recollection of a ten-year plea offer. Counsel testified
that at sentencing she told Minus that she hoped the court
would downwardly depart and give him between a ten and
fifteen year sentence.
state a viable claim for relief under § 2255, a
petitioner 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 a 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). Minus 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).
defendants have a Sixth Amendment right to effective legal
assistance. Strickland v. Washington, 466 U.S. 668,
687 (1984). The proper vehicle for a defendant to raise an
ineffective assistance of counsel claim is by filing a §
2255 motion. United States v. Baptiste. 596 F.3d
214, 216 n.l (4th Cir. 2010). However, ineffective assistance
claims are not lightly granted; "[t]he benchmark
forjudging 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, 466 U.S. at 686. Accordingly, in order
to establish a viable claim of ineffective assistance of
counsel, a defendant must satisfy a two-prong analysis
showing both that counsel's performance fell below an
objective standard of reasonableness and establishing
prejudice due to counsel's alleged deficient performance.
Id. at 687. When considering the reasonableness
prong of Strickland, courts apply a "strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Id., at
689; Gray v. Branker. 529 F.3d 220, 228-29 (4th Cir.
2008). Counsel's performance is judged "on the facts
of the particular case, " and assessed "from
counsel's perspective at the time."
Strickland, 466 U.S. at 689, 690.
satisfy the prejudice prong of Strickland, a
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional error, the outcome
of the proceeding i would have been different. Id.
at 694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Id. Minus' claims of ineffective assistance of
counsel do not satisfy Strickland's stringent
first asserts that his trial counsel provided ineffective
assistance because counsel told him that he qualified as a
career offender when, in fact, he did not so qualify. He
argues that had he known that he was not a career offender,
he would have pleaded guilty instead of going to trial.
Defendants are entitled to effective assistance of counsel
throughout pre-trial proceedings, including plea
negotiations. Padilla v. Kentucky, 559 U.S. 356, 364
(2010). Counsel provides effective assistance by presenting a
defendant with information sufficient for the defendant to
make a "voluntary and intelligent choice among
alternative courses of action." Hill v.
Lockhart, 474 U.S. 52, 56 (1985) (internal quotation
marks omitted). Accordingly, counsel has a responsibility to