United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United Slates District Judge.
the Court is movant William Sykes'("movant" or
"Sykes") Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody ("Motion to Vacate"), as well as a
supplemental filing that appears to request a sentence
reduction for a "minor role of culpability"
("Minor Role Motion"), and a letter motion
requesting that six subpoenas be issued for discovery
purposes ("Letter Motion"). The Motion to Vacate
has been fully briefed and the Court finds that neither oral
argument nor an evidentiary hearing would aid the decisional
process. See Raines v. United States, 423 F.2d 526,
529 (1970) (recognizing that a "full evidentiary
hearing" is not required where "'the files and
records of the case conclusively show that the prisoner is
entitled to no relief.'" (quoting 28 U.S.C. §
2255(b)). The government has not replied to the Minor Role
Motion or the Letter Motion but the Court finds that no reply
is necessary. For the reasons that follow, the Motion to
Vacate will be dismissed, and the remaining motions denied.
August, 29, 2013, a grand jury returned an indictment against
Sykes and 23 other defendants, all of whom were alleged to be
members of the Nine Trey Gang, a street gang associated with
the United Blood Nation. On September 4, 2013, the Court
appointed attorney Alan Yamamoto ("Yamamoto") to
represent Sykes at trial and he also represented Sykes on
appeal. The grand jury returned a superseding indictment
[Dkt. 112] on September 26, 2013, alleging six counts against
Sykes: conspiracy to commit racketeering in violation of 18
U.S.C. §§ 1962(d) and 1963(a) ("Count
1"); two counts of violence in aid of racketeering in
violation of 18 U.S.C. § 1959(a) ("Counts 2 and
3"); use of a firearm during and in relation to a crime
of violence ("Count 4"); conspiracy to distribute
280 grams or more of cocaine in violation of 21 U.S.C.
§§841 and 846 ("Count 5"); and conspiracy
to commit sex trafficking in violation of 18 U.S.C. §
1594(c) ("Count 9"). On February 10, 2014, the
Court dismissed Counts 3 and 4 as to Sykes on the
along with two co-defendants, Thaddeus Snow
("Snow") and Jameel Aleem ("Aleem"), were
the only defendants who went to trial. All the other
defendants entered plea agreements, most of which included
obligations to cooperate. The jury trial began on February
11, 2014, and lasted ten days, ending with the jury
convicting Sykes on all four remaining counts: 1, 2, 5, and
9. In convicting Sykes on Count 1, the jury indicated on a
special verdict form that it found his racketeering activity
to include multiple acts of distribution of controlled
substances, dealing in counterfeit obligations or securities,
sex trafficking, and interstate transportation for
prostitution, and for Count 2 the jury specified that maiming
was the underlying act of violence. [Dkt. 600].
the sentencing hearing, the government filed an information
under 21 U.S.C. § 851 which gave Sykes notice that he
was facing an enhanced punishment because of a prior felony
drug conviction in Virginia state court. [Dkt. 485]. The
conviction on Count 5, in combination with the § 851
enhancement, meant that Sykes was facing a mandatory minimum
of 20 years of imprisonment; however, his guideline range was
30 years to life. Pre-Sentence Report, [Dkt. 738] at 29. That
guideline range included a 3-level enhancement for an
aggravating role in the offense, although the probation
officer concluded, and the Court agreed, that Sykes did
"not qualify for a sentence enhancement under the Career
Offender, Criminal Livelihood, Armed Career Criminal or
Repeat and Dangerous Sex Offender sections, as defined in
Chapter 4, Part B, of the Sentencing Guidelines."
Id. at 44, 25. On May 9, 2014, the Court imposed a
total sentence of 30 years of imprisonment, among other
and Snow filed a joint appeal. Although Snow raised a number
of challenges, Sykes raised only one, arguing that the
evidence was insufficient to support his conviction for
conspiracy to distribute at least 280 grams of a substance
containing cocaine base (Count 5). See United States v.
Snow. 595 F.App'x 223, 226 (4th Cir. 2015).
Specifically, Sykes argued that the drugs were "not
attributable to him." Id. The Fourth Circuit
disagreed, holding that the "record includes sufficient
evidence that Sykes could reasonably have foreseen that the
Nine Treys trafficked in 280 grams or more of cocaine
base." Id. Accordingly, it affirmed his
conviction and sentence. Id. Sykes petitioned the
United States Supreme Court for certiorari, which was denied
on April 20, 2015. Sykes v. United States. 135 S.Ct.
timely filed the Motion to Vacate, along with a memorandum in
support ("memorandum" or "memo.") on
March 2, 2016. The Motion to Vacate listed four numbered
grounds for relief, which the supporting memorandum split
into 15 numbered grounds. Because the memorandum's
grounds are more specific, and incorporate all the arguments
raised in the original Motion to Vacate, this memorandum
opinion will refer to the numbering system from the
memorandum unless otherwise specified. The government filed
its opposition ("Gov. Opp."), which includes
Yamamoto's affidavit, to which Sykes has replied.
2255 authorizes a federal prisoner to move the court to
vacate a sentence "imposed in violation of the
Constitution or laws of the United States." 28 U.S.C.
§ 2255(a). If the prisoner has failed to raise a claim
on direct appeal, he has procedurally defaulted that claim,
barring him from raising it on collateral review unless he
can show "cause excusing his... procedural default"
as well as "actual prejudice resulting from the errors
of which he complains." United States v. Frady.
456 U.S. 152, 165-68 (1982) (internal quotation marks
omitted). With the exception of a sufficiency of the evidence
challenge as to Count 5, all of movant's arguments are
procedurally defaulted because he did not raise them on
direct appeal. See Snow. 595 F.App'x at 226. As
a result, he may not raise them now without demonstrating
cause and prejudice.
cause for his procedural default, movant argues his appellate
counsel was constitutionally ineffective. To establish
ineffective assistance of counsel, movant must show both that
"counsel's performance was deficient" and that
he was prejudiced by that deficient performance.
Strickland v. Washington. 466 U.S. 668, 687 (1984).
Deficient performance occurs when "counsel's
representation [falls] below an objective standard of
reasonableness" as established by "prevailing
professional norms." Id., at 687-88. Because it
"is all too tempting for a defendant to second-guess
counsel's assistance after conviction or adverse
sentence, " and because a wide range of strategies may
be legitimate in a given case, there is a "strong
presumption" that counsel's conduct was effective
and "scrutiny of counsel's performance must be
highly deferential." Id. at 689-90; see
also United States v. Terry. 366 F.3d 312, 316-18 (4th
Cir. 2004). In keeping with this standard, a court is to
assess counsel's conduct not with the benefit of
hindsight, but from the perspective of counsel at the time of
the relevant action or decision. Strickland 466 U.S.
at 689. Further, courts acknowledge that the range of
reasonable professional assistance is wide and "[e]ven
the best criminal defense attorneys would not defend a
particular client in the same way." Id.
Moreover, there can be no question that "counsel [is]
not constitutionally ineffective" for failing to raise
an argument if "it would have been futile for counsel to
have done so[.]" Oken v. Corcoran, 220 F.3d
259, 269 (4th Cir. 2000).
appellate counsel is "not obligate[d] to assert all
non-frivolous issues on appeal[.]" Fisher v.
Lee. 215 F.3d 438, 457 (4th Cir. 2000). A key function
of appellate counsel is "to examine the record with a
view to selecting the most promising issues for review."
Jones v. Barnes. 463 U.S. 745, 752 (1983).
"This process of 'winnowing out weaker arguments on
appeal and focusing on' those more likely to prevail, far
from being evidence of incompetence, is the hallmark of
effective appellate advocacy." Smith v. Murray.
477 U.S. 527, 536 (1986) (quoting Jones. 463 U.S. at
prejudice, a movant must demonstrate "a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Id. at 694. A showing that
"the errors had some conceivable effect on the outcome
of the proceeding" is not enough; a reasonable
probability requires that the errors are "sufficient to
undermine confidence in the outcome, " Id. at
693-94, or that the results of the proceeding were
fundamentally unfair, Lockhart v. Fretwell. 506 U.S.
364, 369 (1993). Assessing prejudice "requires the court
deciding the ineffectiveness claim to 'consider the
totality of evidence before the judge or jury.'"
Elmore v. Ozmint. 661 F.3d 783, 858 (4th Cir. 2011)
(quoting Strickland. 466 U.S. at 695). "Failure
to make the required showing of either deficient performance
or sufficient prejudice defeats the ineffectiveness
claim." Strickland. 466 U.S. at 700.
of ineffective assistance, like any other claims, must be
pleaded with "specific facts to support a potential
finding" in favor of the movant. Hunter v. United
States, No. 2:05CR49, 2010 WL 6050751, at *9 (N.D. W.Va.
Aug. 23, 2010). Because Sykes is pro se, the Court must
construe his allegations liberally. See Erickson v.
Pardus. 551 U.S. 89, 94 (2007). Nevertheless, movant
must still state "more than labels and
conclusions." Giarratono v. Johnson, 521 F.3d
298, 304 n.5 (4th Cir. 2008) (quoting Bell Atl. Corp. v.
Twombly. 550 U.S. 544, 555 (2007)) (internal quotation