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Colley v. United States

United States District Court, E.D. Virginia, Alexandria Division

March 24, 2017

GREGORY JASON COLLEY, Movant,
v.
UNITED STATES OF AMERICA

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge

         Before the Court is Gregory Jason Colley's ("Colley" or "movant") prose Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") [Dkt. No. 43], in which he argues that he received constitutionally ineffective assistance from his Federal Public Defender, Elizabeth Mullin ("Mullin" or "Counsel"). The government has responded to the motion [Dkt. No. 49] and Colley filed a reply pkt. No. 53]. On February 24, 2017, after briefing on the § 2255 Motion was complete, Colley filed a Motion to Amend or Supplement § 2255 Under Rule 15(c) ("Motion to Amend") pkt. No. 54], to which the government responded [Dkt. No. 55].

         Having reviewed the entire record, the Court finds that there is no need for an evidentiary hearing and concludes based on the submitted materials that the § 2255 Motion should be dismissed and the Motion to Amend denied.

         I. BACKGROUND

         According to the Statement of Facts Colley signed when he pleaded guilty, on the evening of September 12, 2014, he met Jason Laytham ("the victim") and an individual identified as N.S. at a bar in Herndon, Virginia. [Dkt. No. 23] ¶¶ 2-3. The three individuals then traveled to the Homewood Suites in Ashburn, Virginia. Id. ¶ 3. There, in Room 350, N.S. and the victim purchased a total of two grams of cocaine from Colley and snorted the cocaine in the room. Id. ¶ 4. N.S. and the victim then traveled to the Marriott Courtyard in Sterling, Virginia to reserve a room for N.S. Id. They subsequently returned the Homewood Suites where they "purchased an unknown amount of an unknown drug from an occupant of Room 350." Id. Immediately after ingesting the unknown drug, N.S. and the victim became unconscious. Id. ¶ 5. After the victim became unconscious, Colley moved the victim from Room 350 to a vending machine area in the hallway of the hotel and called 9-1-1 to alert paramedics. Id. ¶¶ 6-7. Colley admited that he "moved [the victim], at least in part, because he feared the consequences of law enforcement officials finding [the victim's] body inside of [R]oom 350, which he rented in his own name." Id. ¶ 6. Police responded at 4:26 a.m. on September 13, 2014 and found the victim lying unresponsive in the hallway. Id. ¶ 8. He was pronounced dead at 4:45 a.m. Id. ¶ 9. Law enforcement identified Room 350 as the place from which the victim was likely dragged and discovered Colley and N.S. within the suite. Id. ¶¶ 9-10. N.S. appeared to be suffering from a drug overdose; he was transported to the hospital and survived. Id. ¶ 10. Officers secured a search warrant for Room 350 and recovered a baggie containing a substance that lab tests confirmed was cocaine. Id. ¶ 11. Colley affirmed that his actions as described in the Statement of Facts "were in all respects knowing and deliberate, and were not committed by mistake, accident, or other innocent reason." Id. ¶ 14.

         On April 12, 2015, the United States filed a two-count Criminal Complaint against Colley, alleging Drug Distribution, in violation of 21 U.S.C. § 841(a)(1), and Tampering with Evidence, in violation of 18 U.S.C. § 1512(c). [Dkt. No. 1]. In light of Colley's criminal history and status as a career offender under the United States Sentencing Guidelines, Colley faced a guideline range of 262-327 months on the drug distribution charge. [Dkt. No. 49] at 6.[1] The tampering with evidence charge carried a sentencing range of 130-162 months. [Dkt. No. 34] at 27.[2] On July 22, 2015, Colley waived indictment, [Dkt. No. 18], and pleaded guilty to the tampering charge, [Dkt. No. 19]. After a full Rule 11 colloquy, including a review of the Statement of Facts, the Court accepted Colley's guilty plea. Plea Trans. [Dkt. No. 41] at 36:3-9. At the time of the plea hearing, Colley represented that he was thirty-six years old, had a high school education, and had no problem reading, writing, speaking, or understanding English. Plea Trans, at 4:4-10. During the colloquy, Colley, who had affirmed to answer truthfully, stated that he was satisfied with his attorney's representation, Id. at 26:16-18, accepted the Statement of Facts as true, Id. at 32:9-23, and affirmed that he was pleading guilty absent any coercion or threats, Id. at 31:14-16. He also confirmed that he understood that separate charges could be brought in Loudoun County.

The Court: All right. Now, what about Loudoun County? Is your client still exposed as a result of this case to new charges in Loudoun County?
Ms. Mullin: He's exposed to probation violation in Loudoun County. This case was initially brought in state court and dismissed there. So potentially, yes, but my understanding is that Loudoun County might seek to violate him on his probation but won't necessarily bring the charges there, as they've been brought in federal court.
The Court: Well, this is a tampering with witness case... but, for example, there's also, as I understand the facts, a distribution of drugs.
Mr. Ben'Ary: That's correct.
The Court: That would be a different charge.
Mr. Ben'Ary: Again, technically correct, it wouldn't be barred by double jeopardy, but I think likely that Virginia statute would prevent it. We are working with the Loudoun County Sherriff's Department. There isn't any written, formal agreement that covers it, but I think that it's fair to say that no one is expecting additional state charges other than a probation violation based on the conduct that's covered by the statement of facts.
The Court: All right. But the government hasn't guaranteed or promised in any respect that there would be a pass on the Loudoun County charges?
Mr. Ben'Ary: No.
The Court: All right. Well, Mr. Colley, I want to make sure you understand that you're still potentially exposed to other charges in Loudoun County. Do you understand that?
The Defendant: I do.
The Court: All right. Does that in any respect change your decision to plead guilty?
The Defendant: No.
The Court: All right. But do you understand that as part of this agreement with the federal government, the federal government has not guaranteed or promised you that you wouldn't be prosecuted in state court?
The Defendant: That's correct.

Plea Trans, at 13:24-15:25.

         Following Colley's plea, on September 29, 2015, Loudoun County filed its own criminal complaint in General District Court, alleging that on September 13, 2014, Colley distributed narcotics to the victim which contributed to the victim's death. § 2255 Mot. at 14-15.

         On October 16, 2015, Colley was sentenced in this court. His guidelines range was 130-162 months. [Dkt. No. 34] at 27. His criminal history was a category VI based on a total criminal history score of 17 which included multiple felony-level convictions for drug offenses involving methamphetamine (1998, this district), cocaine (2006, Montgomery County, Maryland), cocaine and phencyclidine (2007 and 2008, Loudoun County, Virginia) and marijuana (2009, Culpeper County, Virginia). Id. at 10-20. He received multiple additional periods of incarceration for violating periods of probation. Id. A number of these convictions had suspended sentences and the movant urged the Court to consider that he would receive over a four-year sentence for probation violations arising from the incident. [Dkt. No. 31] at 1, 15. The Court sentenced Colley to a variant sentence of ninety-six months of incarceration, followed by three years supervised release, and ordered him to pay a $100.00 special assessment. [Dkt No. 37]. Colley was also ordered to pay $17, 175.70 in restitution to the victim's family after he agreed to pay that restitution. Id; see also Sent. Trans. [Dkt. No. 42] at 22:3-24:11. The sentence was not ordered concurrent to any state court sentence. See generally Sent. Trans.

         On June 1, 2016, Colley pleaded guilty to the drug distribution charge in Loudoun County. [Dkt. No. 55] at 2; pkt. No. 55] at 1. While awaiting sentencing, he filed his § 2255 Motion in this court. [Dkt. No. 43]. On November 16, 2016, Loudoun County sentenced him to fifteen years with all but five years suspended for the distribution charge. [Dkt. No. 55] at 1. In addition, the suspended sentences for four prior convictions were revoked and the state court ordered Colley to serve a total of four years and four months for these earlier convictions, time that was to run consecutive to his new state ...


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