United States District Court, E.D. Virginia, Norfolk Division
GREGORY G. HATT, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson, United states District Judge.
the Court is pro se litigant Gregory G. Hatt's
("Petitioner") Motion to Vacate, Set Aside, or
Correct a Sentence by a Person in Federal custody pursuant
Title 28, United States Code, Section 2255 ("§ 2255
Motion"). Having thoroughly reviewed the motions and
filings in this case, the Court finds that no hearing is
necessary to address Petitioner's motion. For the reasons
set forth below, Petitioner's § 2255 Motion is
FACTUAL AND PROCEDURAL HISTORY
December 18, 2015, a federal grand jury in the Eastern
District of Virginia returned an eight count superseding
indictment against the Petitioner. ECF No. 26. Count Two,
which charged the Petitioner with "Distribution of
Heroin Resulting in Death, " in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C), is at issue in this
Petition. Section (b)(1)(C), (the "sentencing
enhancement element"), increased the Petitioner's
sentencing exposure from a maximum of twenty years to minimum
of twenty years and a maximum of Life imprisonment upon
conviction. 21 U.S.C. § 841(b)(1)(C); ECF No. 38.
Petitioner pled guilty to Count Two on Feb. 9, 2017, waiving
his right to appeal his conviction and sentence if within
statutory guidelines and all other claims cognizable on
direct appeal. ECF No. 33. Upon hearing and being convinced
that the Petitioner's plea was knowingly and voluntarily
entered, the Court convicted the Petitioner of Count Two and
sentenced him to a 420 month term of imprisonment. ECF No.
32. The Court dismissed the remaining counts of the
indictment upon the government's motion. ECF No. 45.
Petitioner did not appeal.
15, 2017, Petitioner, acting pro se, timely filed
the instant § 2255 Petition. ECF No. 48-49. In his
motion, Petitioner purportedly raises two constitutional
grounds for relief. First, the Petitioner contends that he
received constitutionally ineffective assistance of counsel
because his counsel failed to (1) "investigate and
respond to the information in the state's file, "
(2) explain the heightened "but for" causation test
required to prove his guilt of the sentencing enhancement
provision, and (3) object to the statutory sentencing
enhancement. Pet'r's. § 2255 Mot. at 4-5, ECF
No. 49. Consequently, Petitioner alleges that counsel's
errors prejudiced him in his plea by denying him the
"opportunity to accept an alternative plea, or to go to
trial." Id. at 5. Secondly, the Petitioner
alleges that he was denied due process as a result of
prosecutorial misconduct in violation of Brady v.
Maryland, 373 U.S. 83 (1963), stemming from the
government's failure to consider exculpatory evidence
during the plea agreement and sentencing stages of the
proceedings. ECF No. 48, at 2, 5-8. To the extent that
Petitioner raises new claims in his reply that were not
raised in his initial § 2255 Motion, the Court declines
to address them here. A Helping Hand, LLC v.
Baltimore, 515 F.3d 356, 369 (4th Cir. 2008).
Government filed its response in opposition, along with the
counsel's sworn affidavit on July 16, 2017. ECF No. 54-1.
Counsel, being so compelled, declared in a sworn affidavit
that he reviewed all discovery records with the Petitioner
advising him of both the facts and the law in his case.
Id. The Petitioner filed his reply on Aug. 7, 2017.
ECF No. 55.
STANDARD OF REVIEW AND BURDEN OF PROOF
Petitioner may move the court to vacate, set aside, or
correct his sentence, pursuant to 28 U.S.C. § 2255, in
four instances: (1) the sentence was imposed in violation of
the Constitution or laws of the United States; (2) the
District Court lacked jurisdiction to impose the sentence;
(3) the length of the sentence is in excess of the maximum
authorized by law; and (4) the sentence is otherwise subject
to collateral attack. See 28 U.S.C. § 2255.
"Relief under 28 U.S.C. § 2255 is reserved for
transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised on direct
appeal and would, if condoned, result in a complete
miscarriage of justice." Jones v. United
States, No. 4:09CV76, 2010 WL 451320, at *4 (E.D. Va.
Feb. 8, 2010) (quoting United States v. Vaughn, 955
F.2d 367, 368 (5th Cir. 1992)).
petitioner in federal custody wishes to collaterally attack
his sentence or conviction, the appropriate motion is a
§ 2255 motion. United States v. Winestock, 340
F.3d 200, 203 (4th Cir. 2003). Section 2255 of Title 28 of
the United States Code governs post-conviction relief for
federal prisoners. It provides in pertinent part:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255.
proceeding to vacate a judgment of conviction, the petitioner
bears the burden of proving his or her claim by a
preponderance of the evidence. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958). Additionally,
/wo se filers are entitled to more liberal
construction of their pleadings. Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978), cert, denied,
439 U.S. 970 (1978) (providing that a pro se
petitioner is entitled to have his petition construed
liberally and is held to less stringent standards than an
attorney drafting such a complaint). In deciding a §
2255 motion, the Court need not hold a hearing if "the
motion and the files and the records of the case conclusively
show that the prisoner is entitled to no relief." 28
U.S.C. § 2255. Additionally, the Court is not required
to hold an evidentiary hearing unless the petitioner's
factual allegations, if proven true, would entitle him to
relief. Schriro v. Landrigan, 550 U.S. 465, 474
(2007). Furthermore, if the motion is brought before the
judge that presided over the conviction, the judge may rely
upon recollections of previous events. Blackledge v.
Allison, 431 U.S. 63, 74 n.4 (1977); Carvell v.
United States, 173 F.2d 348, 348-49 (1949) (stating it
is highly desirable that § 2255 motions "be passed
on by the judge who is familiar with the facts and
circumstances surrounding the trial, and is consequently not
likely to be misled by false allegations as to what
under § 2255 "will not be allowed to do service for
an appeal." Sunal v. Large, 332 U.S. 174, 178
(1947). For this reason, issues already fully litigated on
direct appeal may not be raised again under the guise of a
collateral attack. Boeckenhaupt v. United States,
537 F.2d 1182, 1183 (4th Cir. 1976). Ineffective assistance
of counsel claims, however, should generally be raised in a
collateral motion instead of on direct appeal. United
States v. Richardson, 195 F.3dl92, 198 (4th Cir. 1999).
guilty plea does not bar collateral review of allegations of
ineffective assistance of counsel in so far as the alleged
ineffectiveness bears on the voluntariness of the guilty
plea." Fields v. Attorney General of the State of
Maryland,956 F.2d 1290, ...