United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
S. Davis UNITED STATES DISTRICT JUDGE
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).
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. 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filing is deemed WITHDRAWN by Petitioner.
FACTUAL AND PROCEDURAL HISTORY
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.
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.
STANDARD OF REVIEW
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).
§ 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).
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)).
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).
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)
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 ...