United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Petitioner Delante Turner's
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. 2255 [Dkt. 128]. Turner contends that he received
ineffective assistance of counsel due to his attorney's
failure to advise him of certain legal arguments before he
pled guilty. For the following reasons, the Court will deny
March 3, 2016, Turner was indicted on charges of conspiracy
to commit Hobbs Act robbery in violation of 18 U.S.C. §
1951, fifteen separate counts of Hobbs Act robbery in
violation of 18 U.S.C. §§ 2 and 1951, fifteen
separate counts of using, carrying, and brandishing a firearm
during and in relation to a crime of violence in violation of
18 U.S.C. §§ 2 and 924(c), and being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). The charges stemmed from a rash of armed robberies
of small commercial establishments.
April 5, 2016, Turner pled guilty to Counts 20 and 32 of the
indictment - two counts of using, carrying, and brandishing a
firearm during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A) and 2. On July 7,
2016, the Court sentenced Turner to 84 months of
incarceration on Count 20 and 300 months of incarceration on
Count 32 to run consecutively. Turner filed the instant 28
U.S.C. § 2255 Petition on December 28, 2016, claiming
that he received ineffective assistance of counsel.
28 U.S.C. § 2255, a prisoner in federal custody may
collaterally attack his sentence on four grounds: (1) the
sentence was imposed in violation of the Constitution or the
laws of the United States; (2) the court was without
jurisdiction to impose the sentence; (3) the sentence was in
excess of the maximum authorized by law; or (4) the sentence
is otherwise subject to collateral attack. See Hill v.
United States, 368 U.S. 424, 426-27 (1962). The
petitioner bears the burden of proof, which must be
established by a preponderance of the evidence. Miller v.
United States, 261 F.2d 546, 547 (4th Cir. 1958).
petitioner who asserts ineffective assistance of counsel must
meet a two-pronged test to succeed. He or she must show that:
(1) the performance of counsel fell below an objective
standard of reasonableness, based upon prevailing
professional norms; and (2) as a result, there was prejudice
to the defendant. Strickland v. Washington, 466 U.S.
668, 687-88 (1984). To satisfy the performance prong, the
petitioner must demonstrate that the errors were “so
serious that counsel was not functioning as the
‘counsel' guaranteed by the Sixth Amendment.”
Id. at 687. To satisfy the prejudice prong, the
petitioner must demonstrate that “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694. When a petitioner
alleges ineffective assistance related to the entry of a
guilty plea, the district court applies a slightly modified
prejudice standard, requiring the petitioner to demonstrate
that “there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
initial matter, much of the Petition under review eschews any
mention of ineffective assistance of counsel and instead
argues directly that Turner's conviction was legally
deficient. To the extent Turner makes these arguments
directly, his claims are foreclosed by his unconditional
guilty plea. “When a defendant pleads guilty, he waives
all nonjurisdictional defects in the proceedings conducted
prior to entry of the plea.” United States v.
Bundy, 392 F.3d 641, 644 (4th Cir.2004); see also
United States v. Martinez-Martinez, 69 F.3d 1215, 1224
(1st Cir. 1995) (“a valid guilty plea waives all
challenges to the factual and legal foundations of the
charges”). Turner chose not to contest the charges
brought against him and waived his right to appeal his
conviction. The law is clear that Turner may not now directly
challenge the constitutionality of the charges to which he
pled guilty. See, e.g., United States v.
Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010), as
amended (Feb. 9, 2010). This rule applies fully to the
arguments Turner raises here. See United States v.
Wheeler, 857 F.3d 742, 744 (7th Cir. 2017); Davila
v. United States, 843 F.3d 729, 731-32 (7th Cir. 2016).
guilty plea, however, does not foreclose a collateral attack
on the “voluntary and intelligent nature of the guilty
plea, through proof that the advice received from counsel was
not ‘within the range of competence demanded of
attorneys in criminal cases.'” Blackledge v.
Perry, 417 U.S. 21, 30 (1974) (quoting McMann v.
Richardson, 397 U.S. 759, 771 (1970)). The Court
therefore proceeds to assess whether Turner's counsel
provided ineffective assistance in failing to advise Turner
of certain legal arguments he believes should have been made
in his case.
of background, 18 U.S.C. § 924(c)(1)(A) - the statute
under which Turner pled guilty - makes it a criminal offense
to use or carry a firearm “during and in relation to
any crime of violence.” An offense may qualify as a
“crime of violence” under § 924(c)(1)(A)
pursuant to either (1) the elements clause of §
924(c)(3)(A) because it “has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another, ” or (2) the
residual clause of § 924(c)(3)(B) because “by its
nature, [the crime] involves a substantial risk that physical
force against the person or property of another may be used
in the course of committing the offense.”
Turner's predicate “crime of violence” was
Hobbs Act robbery in violation of 18 U.S.C. § 1951. This
statute provides, in relevant part, that “[w]hoever in
any way or degree obstructs, delays, or affects commerce or
the movement of any article or commodity in commerce, by
robbery or extortion or attempts or conspires so to do, or
commits or threatens physical violence to any person or
property in furtherance of a plan or purpose to do anything
in violation of this section shall be fined under this title
or imprisoned not more than twenty years, or both.” 18
U.S.C. § 1951(a).
argues that his attorney rendered ineffective assistance by
failing to inform him that (1) Hobbs Act robbery is not a
“crime of violence” that can serve as a predicate
offense under the elements clause of 18 U.S.C. §
924(c)(3)(A), and (2) Turner's convictions cannot be
sustained under § 924(c)(3)(B), the statute's
residual clause, because that clause is ...