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Hurdle v. United States

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

April 27, 2017

UNITED STATES OF AMERICA, Respondent. Criminal, 2:14crl40



         This matter is before the Court on Rico Ranard Hurdle's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No. 43. Petitioner's § 2255 motion contains a single claim asserting that defense counsel was ineffective for failing to challenge a Guidelines sentencing enhancement premised on Petitioner's possession of a firearm. Before this Court ruled on such motion, pro se Petitioner filed a second § 2255 motion, which is construed by this Court as a request to amend Petitioner's pending § 2255 motion to add a claim challenging Petitioner's status under the federal sentencing Guidelines as a "career offender, " in reliance on Johnson v. United States, 135 S.Ct. 2551 (2015). ECF No. 52. After receiving such § 2255 amendment, this Court ordered the Government to file a supplemental answer addressing the Johnson claim; however, prior to filing such response, the Government moved for a stay of this § 2255 action. ECF No. 54. This Court subsequently entered a stay in this case pending the Supreme Court's resolution of Beckles v. United States, which was decided on March 6, 2017. Beckles, 137 S.Ct. 886 (2017).

         Immediately prior to the Supreme Court's issuance of its Beckles decision, Petitioner submitted an (unsigned) motion seeking a ruling on his pending § 2255 motion. ECF No. 56. Shortly after Beckles was decided, Petitioner filed a "Notice of Voluntary Dismissal, " which appears to be limited to pursuing dismissal of Petitioner's Johnson claim advanced in his amended § 2255 filing. ECF No. 57.[1] For the reasons set forth below, the relief requested in Petitioner's original § 2255 filing is DENIED on the merits, and the relief requested in Petitioner's amended § 2255 filing is deemed WITHDRAWN by Petitioner.


         Petitioner was charged in a two-count indictment with Possession with the Intent to Distribute Cocaine (Count One) and being a Felon in Possession of a Firearm (Count Two) . ECF No. 1. Pursuant to a written plea agreement, Petitioner pled guilty to the drug trafficking offense charged in Count One. ECF No. 15. Although Count Two of the indictment was ultimately dismissed by the Government, at sentencing, Petitioner was attributed with a two-level firearm enhancement under the advisory sentencing Guidelines. Such enhancement was not objected to by defense counsel, although it must be noted that, because Petitioner's "career offender" offense level under Chapter Four of the Guidelines far exceeded his Chapter Two offense level that took the firearm into consideration, Petitioner's advisory Guideline range was not increased due to the attribution of the firearm.

         Prior to sentencing, defense counsel submitted a position paper highlighting the fact that Petitioner had admitted the conduct in the "Statement of Facts" and fully accepted responsibility for his unlawful acts. ECF No. 26, at 4. Defense counsel further argued for a variance sentence below the low-end of the advisory Guideline range in light of the fact that the career offender Guideline increased Petitioner's recommended sentence by several fold. Id. Over the Government's objection, the Court imposed a variance sentence more than two and a half years below the low-end of the advisory Guideline range, noting among several reasons for the variance Defendant's acceptance of responsibility. ECF No. 30.


         A federal prisoner, in custody, may collaterally attack his sentence or conviction by moving the district court "to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). To obtain such relief, a petitioner must prove by a preponderance of the evidence that his sentence or conviction was "imposed in violation of the Constitution or laws of the United States, " that the district court "was without jurisdiction to impose such sentence, " that the sentence exceeds "the maximum authorized bylaw/' or that the sentence or conviction is "otherwise subject to collateral attack." Id.; see Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Because a § 2255 motion "is ordinarily presented to the judge who presided at the original conviction and sentencing . . . the judge's recollection of the events at issue" may inform the resolution of the motion. Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977).

         A § 2255 motion is, in essence, a statutory federal habeas corpus action that enables a petitioner to collaterally attack his sentence or conviction through the filing of a new proceeding, as contrasted with a direct appeal. United States v. Hadden, 475 F.3d 652, 663 (4th Cir. 2007) . The existence of the right to pursue a collateral attack does not displace a direct appeal as the "usual and customary method of correcting trial errors." United States v. Allgood, 48 F.Supp.2d 554, 558 (E.D. Va. 1999).

         Although a petitioner advancing new claims asserted for the first time in a § 2255 motion must generally "clear a significantly higher hurdle than would exist on direct appeal, " United States v. Frady, 456 U.S. 152, 166 (1981), a freestanding claim of ineffective assistance of counsel is properly asserted for the first time in a § 2255 motion, see United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (w[I]t is well settled thatxa claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance.'" (quoting United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992))). Such rule exists because the Federal Rules Governing § 2255 Proceedings permit expansion of the record, which is generally unavailable on direct appeal. United States v. Baptiste, 596 F.3d 214, 216 n.l (4th Cir. 2010) (citing Massaro v. United States, 538 U.S. 500, 504-06, (2003)).

         The Sixth Amendment to the Constitution of the United States provides that "the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The United States Supreme Court has interpreted the right to counsel as providing a defendant * * the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686 (1984) (emphasis added) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To obtain relief based on an allegation of ineffective assistance, a petitioner must establish both that: (1) counsel's performance was so deficient that it fell below an objective standard of reasonableness; and (2) counsel's inadequate performance caused the petitioner prejudice. Id. at 687-88. "Vague and conclusory allegations contained in a § 2255 petition" are insufficient to carry a petitioner's burden under Strickland, and such allegations may therefore "be disposed of without further investigation by the District Court." United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013} (quotation marks and citation omitted).

         Satisfying the first prong of Strickland requires a petitioner to establish that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Reviewing courts strongly presume that counsel exercised reasonable professional judgment, and only in "relatively rare situations" will a § 2255 motion establish that, "'in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.7" Tice v. Johnson, 647 F.3d 87, 102 (4th Cir. 2011) (quoting Strickland, 466 U.S. at 690) . As it is all too easy to challenge an act, omission, or strategy, once it has proven unsuccessful, "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. A petitioner's showing of deficient performance must therefore go beyond establishing that counsel's performance was below average, because "effective representation is not synonymous with errorless representation." Springer v. Collins, 586 F.2d 329, 332 (4th Cir. 1978); see Strickland, 466 U.S. at 687. As recently reiterated by the Fourth Circuit, the "basic lesson" of Strickland is not just deference, but high deference, and attorneys are permitted toMbe selective and strategic without risking an ineffective assistance of counsel claim." United States v. Mason, 774 F.3d 824, 828, 830 (4th Cir. 2014) (citations omitted).

         The second prong of Strickland requires a petitioner towaffirmatively prove prejudice, " which requires a showing 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 693-94. nA reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. If a petitioner fails to prove either of the two prongs of the Str ...

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