United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad, United States District Judge
Abdul Salam, a federal inmate proceeding pro se, has moved to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. The government has filed a motion to dismiss,
arguing that Salam has not raised any issues entitling him to
relief. Salam has responded, making this matter ripe for
consideration. Upon review of the record, the court concludes
that the government's motion to dismiss must be granted.
March 21, 2013, a grand jury returned an indictment, charging
Salam with conspiracy to distribute and possess with intent
to distribute 1, 000 grams or more of a mixture or substance
containing heroin, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A) and 846. On April 22, 2013, Salam was
arraigned, formally advised of the charges against him and
the maximum penalties that he faced, and appointed counsel,
Seth Weston. On May 31, 2013, however, he moved for the
appointment of new counsel because he was dissatisfied with
services rendered. Motion at 1, ECF No. 76. This motion was
granted and he was appointed new counsel, L. Brad Braford.
ECF No. 81. Braford moved to withdraw after learning of a
potential conflict of interest, ECF No. 84, and Jack Gregory
was appointed to represent Salam. ECF 88. On September 12,
2013, Salam again moved for new counsel, but the motion was
denied. ECF No. 112. Gregory moved to withdraw, and this
motion was granted. ECF No. 145. On December 19, 2013, Salam
was appointed a fourth counsel, Paul Beers. ECF No. 162. On
February 26, 2014, the government filed a notice of
enhancement under 21 U.S.C. § 851, noting that because
Salam previously had been convicted of a felony drug offense,
he faced a mandatory minimum term of incarceration of 20
years. Notice at 1, ECF No. 182. At some point prior to
trial, the government presented Salam with a written plea
offer that provided for a sentence of 14 years' (168
months') incarceration. Salam did not accept the plea
offer. Prior to proceeding to trial, the court held a
hearing, pursuant to Lafler v. Cooper, 566 U.S. 156
(2012), and Missouri v. Frye, 566 U.S. 134 (2012),
to ensure that Salam did, in fact, wish to proceed to trial
instead of accepting a plea offer. Mot. Hr'g Tr. at 19,
ECF No. 268. Salam assured the court that he was aware of the
14-year plea offer, but was not interested in accepting it.
Salam proceeded to trial on April 7, 2014. The jury found him
guilty. Verdict at 1, ECF No. 216. A presentence
investigation report ("PSR") was created in
anticipation of sentencing. The PSR recommended that Salam be
considered a career offender, based on his criminal history.
PSR ¶ 46, ECF No. 265. As a result of that designation,
the PSR recommended an advisory guideline range of 360
months' incarceration to life. Id. ¶ 85. At
Salam's sentencing hearing, however, defense counsel
argued that because Salam's predicate offenses had
occurred long ago, the court should "consider his
criminal history . . . overstated and . . . ignore the career
offender guidelines." Sent. Hr'g Tran. at 14, ECF
No. 272. The court agreed with defense counsel that it would
not be "fair to treat [Salam] as a career offender"
and that a "depart[ure]" was warranted.
Id. at 22. Accordingly, the court sentenced Salam to
292 months' incarceration. Id. at 32.
appealed, challenging his conviction and sentence, arguing
that the court erred by admitting testimony from a drug
trafficking expert, by refusing to give a jury instruction
regarding multiple conspiracies, by refusing to grant a
mistrial based on improper closing argument statements, and
by applying a leadership role enhancement. The United States
Court of Appeals for the Fourth Circuit affirmed. United
States v. Salam. 611 Fed.Appx. 110 (4th Cir. April 15,
2015) (unpublished). The Supreme Court of the United States
denied Salam's petition for writ of certiorari on
November 16, 2015. Salam v. United States. 136 S.Ct.
523 (2015). On November 10, 2016, Salam executed this §
2255 motion, arguing that he received ineffective assistance
because counsel did not adequately advise him of the benefits
of accepting a plea agreement and the perils of proceeding to
trial. § 2255 Mot. at 5, ECF No. 339.
state a viable claim for relief under § 2255, a
petitioner 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 a 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). Salam bears the burden of proving
grounds for a collateral attack by a preponderance of the
evidence. Miller v. United States, 261 F.2d 546, 547
(4th Cir. 1958).
Ineffective Assistance Legal Standard
argues that he received ineffective assistance of counsel and
the proper vehicle for raising such a claim is by filing a
§ 2255 motion. United States v. Baptiste, 596
F.3d 214, 216 n.l (4th Cir. 2010). However, ineffective
assistance claims are not lightly granted; "[t]he
benchmark for judging any claim of ineffectiveness must be
whether counsel's conduct so undermined the proper
functioning of the adversarial process that the [proceeding]
cannot be relied on as having produced a just result."
Strickland v. Washington, 466 U.S. 668, 686 (1984).
Accordingly, in order to establish a viable claim of
ineffective assistance of counsel, a defendant must satisfy a
two-prong analysis showing both that counsel's
performance fell below an objective standard of
reasonableness and establishing prejudice due to
counsel's alleged deficient performance.
Strickland, 466 U.S. at 687. When considering the
reasonableness prong of Strickland, courts apply a
"strong presumption that counsel's conduct falls
within the wide range of reasonable professional
assistance." Id. at 689; Gray v.
Branker, 529 F.3d 220, 228-29 (4th Cir. 2008).
Counsel's performance is judged "on the facts of the
particular case, " and assessed "from counsel's
perspective at the time." Strickland, 466 U.S.
at 689, 690.
satisfy the prejudice prong of Strickland, a
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional error, the outcome
of the proceeding would have been different. Id. at
694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694.
Salam's Ineffective Assistance of Counsel Claim
argues that counsel provided ineffective assistance because
he did not explain to Salam the full extent of his sentence
exposure. Specifically, Salam argues that counsel provided
bad advice by failing to explain that he would likely be
considered a career offender, based on his criminal history,
which would increase his guideline range, and by failing to
explain the sentencing ramifications of the § 851 notice
filed by the government. Salam asserts that had he known his
true sentence exposure, he would not have gone to trial but
would have accepted the plea offer.
argument is without merit. First, he was apprised, on
numerous occasions, of the maximum possible sentence that he
faced. At his initial appearance, the government informed
Salam that "the possible penalties you face for this are
a mandatory minimum ten years, a maximum life imprisonment.
However, if you have any prior drug-trafficking crimes or any
other serious drug crimes in the past, the government could
file an enhancement . . . and the mandatory minimum would go
from ten years to 20 years" with a maximum of life
imprisonment. Int. App. Hr'g Tr. at 9, ECF No. 167. When
asked whether he understood the penalties that he faced,
Salam affirmed ...