United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
REBECCA BEACH SMITH CHIEF JUDGE
matter comes before the court on the Petitioner's
pro se Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence ("§ 2255
Motion" or "Motion"), submitted April 17,
2017. Mot., ECF No. 39. On the same day, the Petitioner also
submitted a "Pro Se Memorandum of Law and Facts" in
support of his § 2255 Motion ("Memorandum").
Mem., ECF No. 40. The government responded on September 1,
2017, and forwarded a copy of its Response to the Petitioner
on September 7, 2017. ECF Nos. 47, 48. The Petitioner filed a
Reply to the government's Response on October 19, 2017.
ECF No. 49. Though the Petitioner's Reply was untimely
and lacked a certificate of service, the court lifted the
defects and forwarded a copy of the Reply to the United
States Attorney. ECF No. 50. The matter is now ripe for
reasons below, the court DENIES the
Petitioner's Motion in all respects except one, that
being the Petitioner's claim that his counsel was
ineffective for failing to file an appeal as instructed by
the Petitioner. On that claim only, the court
WITHOLDS RULING until an evidentiary hearing
FACTUAL AND PROCEDURAL BACKGROUND
in approximately May 2015 until approximately August 2015,
the Petitioner distributed heroin to an individual referred
to as D.D. Statement of Facts ¶ 2, ECF No. 25.
D.D. would then further distribute the drugs in smaller
quantities. Id. On approximately August 15, 2015,
Virginia Beach Police Department ("VBPD") officers
arrested D.D. and seized from him approximately 3.3 grams of
heroin. Id. Following his arrest, D.D. agreed to
cooperate with VBPD by contacting his supplier, the
Petitioner. Id. VBPD officers then arrested the
Petitioner and seized from him approximately 261.1 grams of
heroin, marijuana, and approximately $4, 311 in cash.
Id. A search of the Petitioner's residence
yielded a semi-automatic pistol, and a search of a car parked
at his residence yielded an additional 375.64 grams of
heroin. Id. at 3.
December 16, 2015, the Petitioner was charged by a
Three-Count Indictment with (1) Conspiracy to Distribute and
Possess with Intent to Distribute 100 Grams or More of
Heroin, in violation of 21 U.S.C. § 846; (2) Possession
of 100 or More Grams of Heroin with Intent to Distribute, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); and
(3) Felon in Possession of a Firearm, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). On March 24,
2016, the Petitioner appeared before the Honorable Magistrate
Judge Douglas E. Miller for a plea hearing pursuant to Rule
11 of the Federal Rules of Criminal Procedure. Attach. 1 to
Gov't Resp. ("Plea Hr'g Tr."), ECF No.
47-1. After conducting a Rule 11 colloquy, the court accepted
the Petitioner's plea of guilty on Counts One and Three.
Id. at 1-24. The remaining Count was dismissed. Plea
Agreement at 5, ECF No. 24.
September 2, 2016, this court adjudged the Petitioner guilty
and sentenced him. ECF No. 35. The court determined that the
Petitioner was a career offender under United States
Sentencing Guidelines ("U.S.S.G.") § 4B1.1
because he had two state court convictions for Possession of
Cocaine with Intent to Distribute, in violation of Virginia
Code § 18.2-248. Presentence Investigation Report
("PSR") at ¶ 30, ECF No. 30. As such, the
Petitioner was sentenced to three hundred (300) months'
imprisonment, consisting of three hundred (300) months on
Count One and one hundred twenty (120) months on Count Three,
to run concurrently, followed by eight (8) years of
supervised release. ECF Nos. 35, 36.
Memorandum and Reply, the Petitioner claims (1) that he
received ineffective assistance of counsel in entering the
plea agreement, Mem. at 4-18; Reply at 2-13, and (2) the
sentence he received was above the maximum authorized by law,
Mem. at 18-22; Reply at 13-16. In support of his ineffective
assistance of counsel claim, the Petitioner asserts first
that his counsel was constitutionally deficient for failing
to argue that no conspiracy exists where the only other party
to such conspiracy is a confidential informant. Mem. at 4;
Reply at 2-7. Second, the Petitioner claims his counsel
failed to file an appeal contrary to the Petitioner's
instruction. Mem. at 11; Reply at 7-10. Third, the Petitioner
claims his counsel failed to apprise him of the ramifications
or nature of a plea agreement. Mem. at 13; Reply at 10-13.
Next, in support of his sentencing claim, the Petitioner
first asserts that he erroneously received the career
offender enhancement because his two prior convictions are
more than fifteen years old. Mem. at 19. The Petitioner also
contends that his prior convictions are not controlled
substance offenses under U.S.S.G. § 4B1.2(b). Mem. at
21-22; Reply at 13-16.
reasons below, this court REJECTS the
Petitioner's argument that his sentence was unlawful. The
court also REJECTS the Petitioner's
claim that his attorneys were ineffective because they failed
to object to the Petitioner's conspiracy charge and
explain the ramifications of the plea agreement. However, the
court WITHOLDS RULING on the
Petitioner's claim that counsel failed to file a notice
of appeal as instructed and GRANTS the
Petitioner an evidentiary hearing on that question.
LEGAL STANDARD FOR § 2255 PETITIONS
prisoner may challenge a sentence imposed by a federal court
if: (1) the sentence violates the Constitution or laws of the
United States; (2) the sentencing court lacked jurisdiction
to impose the sentence; (3) the sentence exceeds the
statutory maximum; or (4) the sentence "is otherwise
subject to collateral attack." 28 U.S.C. § 2255(a).
A sentence is "otherwise subject to collateral attack,
" if a petitioner shows that the proceedings suffered
from, Ma fundamental defect which inherently
results in a complete miscarriage of justice.'"
United States v. Addonizio, 442 U.S. 178, 185 (1979)
(quoting Hill v. United States, 368 U.S. 424, 428
prisoner bears the burden of proving one of these grounds by
a preponderance of the evidence. See Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958). If he
satisfies that burden, the court may vacate, set aside, or
correct the sentence. 28 U.S.C. § 2255(b). However, if
the motion, when viewed against the record, shows that the
petitioner is entitled to no relief, the court may summarily
deny the motion. Raines v. United States, 423 F.2d
526, 529 (4th Cir. 1970).
THE PETITIONER'S SENTENCE
Petitioner contends that his sentence was unlawful because
his state court convictions are not categorical matches with
a controlled substance offense under U.S.S.G. §
4B1.2(b). Mem. at 21; Reply at 13-16. The Petitioner is
§ 4B1.1, a defendant is a career offender if,
inter alia, "the defendant has at
least two prior felony convictions of either a crime of
violence or a controlled substance offense." U.S.S.G.
§ 4Bl.l(a). Section 4B1.2(b) defines a "controlled
substance offense" as:
[A]n offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits
the manufacture, import, export, distribution, or dispensing
of a controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit