United States District Court, W.D. Virginia, Abingdon Division
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for United States;
Ashanti Rhan Henry, Pro Se Defendant.
P. Jones United States District Judge
defendant, Ashanti Rhan Henry, proceeding pro se, has filed a
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255, based on claims of ineffective
assistance of counsel and constitutional error. The
government has filed a Motion to Dismiss and Henry has
responded. Accordingly, Henry's motion is ripe for
disposition. After reviewing the record, I will grant the
United States' Motion to Dismiss.
jury returned a multi-count Superseding Indictment against
Henry and ten codefendants for various drug-related crimes.
Henry was charged with four counts of distribution of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C) (Counts One through Four); one count of
possession with intent to distribute 28 grams or more of
cocaine base, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B) (Count Five); one count of
maintaining a place for the purpose of distributing a
controlled substance, in violation of 21 U.S.C. §
856(a)(1) (Count Six); and one count of conspiracy to
distribute and possess with intent to distribute 280 grams or
more of cocaine base, five kilograms or more of cocaine, and
oxycodone, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A) and 841(b)(1)(C) (Count Seven). The government
filed an Information advising Henry that because of his two
prior drug convictions, if convicted of Count Seven, he would
face “a mandatory term of life imprisonment, ”
pursuant to 21 U.S.C. §§ 846, 841(b)(1)(A) and 851.
Am. Sentencing Enhancement Information 2, ECF No. 172.
pleaded guilty pursuant to a written Plea Agreement to Count
Seven of the Indictment. Plea Agreement 1, ECF No. 276. The
Plea Agreement stipulated that Henry faced a maximum
statutory term of life imprisonment. Id. The Plea
Agreement also provided that the government had filed an
Information pursuant to 21 U.S.C. § 851, but would limit
the enhancement by relying on only one of Henry's prior
felony drug convictions and dismissing all others.
Id. at 3. In addition, the government agreed to
dismiss the remaining counts from the Indictment.
Id. at 2. The parties agreed to recommend a sentence
at the low end of the guideline range. Id. at 4.
change-of-plea hearing, Henry stated that he had had an
adequate opportunity to read and discuss with counsel the
Indictment and Plea Agreement before signing it. Plea
Hr'g Tr. 5, 6, ECF No. 291. Henry expressed some concern
regarding his representation and the terms of the Plea
Agreement, but ultimately affirmed that he wanted to plead
guilty. Id. at 11-29. Henry affirmed his
understanding that by pleading guilty, he gave up his right
to appeal and to collaterally attack his sentence except as
to matters that cannot be waived under the law or that allege
ineffective assistance of counsel. Id. at 31-32.
Finally, Henry affirmed that he was guilty of Count Seven.
Id. at 40. I found Henry to be fully competent and
capable of entering an informed plea and determined that his
guilty plea was knowing and voluntary. Id. at 40-41.
subsequently filed a motion through counsel seeking to
withdraw his guilty plea, asserting his innocence and
requesting that he be allowed to proceed to trial. Following
a hearing, I denied Henry's motion.
Presentence Investigation Report (“PSR”)
recommended a total offense level of 40 and a criminal
history category of V, resulting in a guideline imprisonment
range of 360 months to life imprisonment. PSR ¶ 176,
ECF No. 397. Henry's counsel submitted fourteen
objections to the PSR, including challenges to the four-level
enhancement for being an organizer or leader in the
conspiracy, the drug weight calculation, the
obstruction-of-justice enhancement, and various alleged
factual inaccuracies. Id. at 27-31. I denied those
objections, adopted the PSR, and sentenced Henry to 360
months imprisonment. Sentencing Hr'g Tr. 46, ECF No. 450;
J. 2, ECF No. 395.
appealed, asserting that I had erred by denying his motion to
withdraw his guilty plea. The Fourth Circuit affirmed.
United States v. Henry, 592 F. App'x 201, 202
(2015) (unpublished). Henry also filed a petition for a writ
of certiorari with the Supreme Court, which was denied.
Henry v. United States, 135 S.Ct. 2817 (2015).
present § 2255 motion, Henry alleges that counsel
provided ineffective assistance by (1) failing to explain to
the court that his erroneous advise induced Henry to plead
guilty; (2) failing to challenge errors in the PSR; (3)
failing to investigate; and (4) failing to explain that the
inclusion of a collateral attack waiver in his Plea Agreement
created a conflict of interest. Henry also alleges that the
Criminal Complaint that preceded the Superseding Indictment
was constitutionally deficient. Finally, in a Motion to Amend
his § 2255 Motion, ECF No. 554, Henry asserts that he is
entitled to a reduced sentence following the Supreme Court
decision in Johnson v. United States, 135 S.Ct.
state a viable claim for relief under § 2255, a
defendant must prove: (1) that his sentence was
“imposed in violation of the Constitution or laws of
the United States”; (2) that “the court was
without jurisdiction to impose such sentence”; or (3)
that “the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). Henry bears the
burden of proving ...