United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Petitioner Dominique Armani
Johnson's ("Petitioner") Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255.
September 28, 2012, Petitioner pleaded guilty to a one-count
information charging him with possession of a firearm in
furtherance of a drug-trafficking crime, in violation of 18
U.S.C. § 924(c). At the plea hearing, Petitioner was
placed under oath, and this Court reminded Petitioner that
any false answers could subject to him to a charge of
perjury. During the colloquy, Petitioner acknowledged that
there was a factual basis for his conviction and he made no
claim of innocence. Petitioner stated that he was satisfied
with his attorney's representation. When asked if anyone
had made any promises or threats to induce him to plead
guilty, Petitioner said, "No." Both the written
plea agreement and the plea colloquy reflected the fact that
Petitioner faced a mandatory minimum sentence of a five years
and a maximum sentence of life.
written plea agreement, which Petitioner acknowledged under
oath that he had reviewed it with his attorney, does not
include any indication that Respondent would file a motion to
reduce Petitioner's sentence. Rather, the agreement
states that Respondent had the "sole discretion" to
move for a sentence reduction. Petitioner's attorney,
Kimberly Phillips, filed a notarized affidavit on March 4,
2014, with the Court affirming these facts. In the affidavit,
Ms. Phillips stated that "[a]t no time was Mr. Johnson
promised a sentencing reduction by either me or the
Government in exchange for his guilty plea."
December 14, 2012, this Court issued Petitioner a below the
guidelines sentence of eighty-four months in prison followed
by a five-year term of supervised release. This Court entered
the judgment order on December 20, 2012. On December 17,
2013, Petitioner filed the instant § 2255 motion,
raising four grounds for relief: (1) ineffective assistance
of counsel because his attorney allegedly advised him that
the government would file a Rule 35(b) motion to reduce his
sentence; (2) that his plea was involuntary and unknowing
because of this advice; (3) that the Respondent breached its
promise to file a Rule 35(b) motion; and (4) that his counsel
was ineffective post-sentencing because she failed to provide
him the necessary documentation for his § 2255 motion.
U.S.C. § 2255 may be used to challenge a 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 is otherwise 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 the grounds for 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 he received
ineffective assistance of counsel. The Court finds that this
claim is without merit. The Supreme Court in Strickland
v. Washington, 466 U.S. 668, 687 (1984), established a
two-part test for evaluating ineffective assistance of
counsel claims: (1) counsel's performance was objectively
unreasonable; (2) the deficient performance prejudiced the
defense. Id. at 687-88. An ineffective assistance of
counsel claim will fail if petitioner cannot make the
required showing of either deficient performance or
sufficient prejudice. 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). 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,
Strickland, 466 U.S. at 691, and courts should be
reluctant to second guess the tactics of trial lawyers.
Goodson v. United States, 564 F.2d 1071, 1072 (4th
second prong of the test, a petitioner must show that there
is a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at
669. In the context of plea bargaining, a petitioner must
show that "the outcome of the plea process would have
been different with competent advice." Lafler v.
Cooper, 132 S.Ct. 1376, 1384 (2012).
Petitioner cannot satisfy his burden on either prong for his
ineffective assistance of counsel claims. Petitioner's
first claim that his attorney advised him that Respondent
would file a Rule 35(b) motion to reduce his sentence in
exchange for pleading guilty is directly contradicted by the
record. The plea colloquy, the written plea agreement, and
the affidavit from Petitioner's counsel all contradict
his claim that Respondent would file a Rule 35(b) motion
asking for a reduced sentence. Furthermore, Petitioner
himself acknowledged in court and under oath that the plea
documents contained the entirety of his plea agreement with
Respondent and that no promise had been made to induce him to
plead guilty. Thus, the record does not support
Petitioner's version of the facts.
he had been misinformed, Petitioner still cannot prove
prejudice. Petitioner's only alternative to a guilty plea
was going to trial. Yet, nowhere in his petition does
Petitioner argue that he would have gone to trial had he
known Respondent would not file a Rule 35(b) motion to reduce
his sentence. Thus, Petitioner had failed to meet his burden
on his first claim of ineffective assistance of counsel.
second ground for relief, Petitioner argues that his plea was
involuntary and unknowing. This Court finds that this claim
is also without merit. Among other things, a plea colloquy
should make the defendant aware of the charge he is pleading
to, the possible punishment he faces, and the rights he is
giving up by pleading guilty. Fed. R. Crim. P. 11. Unless an
error affects the "substantial rights" of a
defendant, the error is harmless. See Fed. R. Crim.
P. 11(h). Absent clear and convincing evidence to the
contrary, the defendant is bound by the representations he
makes under oath. Fields v. Att'y Gen, of State of
Md., 956 F.2d 1290, 1299 (4th Cir. 1992).
in the plea colloquy, Petitioner acknowledged that there was
a factual basis for his conviction; that he understood he was
waiving certain constitutional rights by pleading guilty;
that he had reviewed the agreement with his attorney; that he
faced a mandatory minimum sentence of five years
imprisonment; and that no promises had been made by anyone to
induce him to plead guilty. All of these facts indicate that
Petitioner's plea was voluntarily and knowingly entered.
Moreover, Petitioner does not provide any particular
allegations or credible evidence to support his argument that
Respondent promised to file a Rule 35(b) motion to reduce his
sentence. Thus, Petitioner has failed to meet his burden of
proving with clear and convincing evidence that his
representations under oath were anything other than true.
third ground for relief, Petitioner argues that the
Respondent breached its promise to file a Rule 35(b) motion.
For the reasons already stated above, Petitioner has failed
to prove with a preponderance of evidence that Respondent
ever made such a promise. As noted above, the written plea
agreement itself made clear that the decision to file a Rule
35(b) motion to reduce Petitioner's sentence was in the
"sole discretion" of Respondent. Petitioner
acknowledged that he had reviewed the written agreement, ...