United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge
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].
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.
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.
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. The tampering with evidence charge
carried a sentencing range of 130-162 months. [Dkt. No. 34]
at 27. 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.
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.
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.
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