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Mitchell v. United States

United States District Court, E.D. Virginia, Newport News Division

December 5, 2017




         This matter is before the Court on Gabriel Daniel Morrison Mitchell's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No. 198. Petitioner's § 2255 motion, which was filed with the assistance of counsel, advances four claims, all alleging ineffective assistance of trial counsel. Id. Petitioner has also filed numerous pro se motions seeking to amend or supplement his § 2255 motion. In response, the Government argues that Petitioner's original § 2255 claims lack merit, and that his pro se attempts to amend his § 2255 motion are both untimely and improper. For the reasons set forth below, the claims in Petitioner's original § 2255 motion, his associated motions to supplement/amend, and his reply briefs or motions filed under alternative headings are all DISMISSED and/or DENIED on the merits.[1]


         In January of 2012, Petitioner and two co-conspirators committed an armed robbery and carjacking, resulting in the theft of several appliances from a delivery truck of a Sears contractor. On February 8, 2012, a federal grand jury returned a multi-count indictment charging Petitioner and co-defendant Antonio McGhee ("McGhee") with three felony counts. ECF No. 1. On April 5, 2012, a grand jury returned a multi-count superseding indictment that added a fourth Count, and added a new co-defendant, Travis Williams ("Williams"). ECF No. 23. Following Williams' plea of guilty to two of the four felony charges, a second superseding indictment was returned charging Petitioner and McGhee with the same four counts as the first superseding indictment. ECF No. 64.

         Petitioner pled not guilty to the charges and proceeded to a joint jury trial with co-defendant McGhee. At trial, the evidence revealed that Anthony Wilson ("Wilson"), the delivery truck driver, was carjacked by two men. Unbeknownst to Wilson, his delivery helper, Travis Williams, had participated in arranging the carjacking. Having received inside information from Williams, the two carjackers appeared at an appliance delivery location, displayed a firearm, bound Wilson and Williams (who was pretending to be a victim), and later offloaded the appliances.

         At the conclusion of the jury trial, the jury returned a verdict of Guilty as to all four counts charged against Petitioner. ECF No. 90. On August 23, 2013, Petitioner was sentenced to a total of 260 months imprisonment, consisting of 200 months on the robbery counts and 60 months consecutive based on the use of a firearm in furtherance of the robbery. Petitioner timely appealed his conviction, and the Fourth Circuit affirmed. ECF No. 180. Petitioner thereafter filed a petition for writ of certiorari, and on January 12, 2015, the United States Supreme Court denied such petition. Mitchell v. United States, 135 S.Ct. 1018 (2015).

         Petitioner, with the assistance of counsel, timely filed his § 2255 motion on January 12, 2016. ECF No. 198. Prior to the Government filing its Rule 5 Answer, Petitioner purported to file three pro se § 2255 supplements. ECF Nos. 202/203, 206/209, 207/208.[2] Notably, notwithstanding the fact that Petitioner was represented by counsel, each of these supplements was filed pro se and each was filed more than one-year after Petitioner's conviction and sentence became final. See United States v. Segers, 271 F.3d 181, 186 (4th Cir. 2001) (w [T] he judgment of conviction of a prisoner who has petitioned for certiorari becomes final . . . when the Supreme Court denies certiorari after a prisoner's direct appeal.").

         The Government thereafter filed a response in opposition to all four of the timely claims contained in Petitioner's original § 2255 motion. ECF No. 210. Approximately one month later, Petitioner submitted an unsigned pro se reply brief to the Court. ECF No. 212. The unsigned pro se brief was followed up by a reply brief submitted by Petitioner's counsel; however, the Court returned such brief to habeas counsel based on the Clerk's Office's discovery that Petitioner's retained habeas counsel was not licensed to practice in this District. ECF No. 215. Subsequent to the Clerk's Office notifying habeas counsel on multiple occasions that he was not licensed to practice in this Court, id., the Court issued a "Show Cause" Order requiring habeas counsel to demonstrate why the entire § 2255 case should not be stricken based on counsel's failure to associate with licensed local counsel. ECF No. 217. Petitioner's habeas counsel thereafter associated with local counsel, the Court allowed the § 2255 case to proceed, ECF No. 221, and licensed local counsel filed the operative "reply brief" to the initial § 2255 petition, ECF No. 224.

         During the interim, although this Court had substantial reservations about the propriety of the facially untimely pro se amendments/supplements filed in this case, the Court ordered a supplemental response from the Government, in part because one of Petitioner's filings sought to raise a claim under Johnson v. United States, 135 S.Ct. 2551 (2015), ECF No. 216, a claim that was potentially subject to a different limitations period. The Government filed a supplemental response, ECF No. 231, and Petitioner submitted a reply brief, although again, such brief was submitted pro se, ECF No. 232/235. Petitioner, without leave of Court, or the assistance of counsel, subsequently submitted two additional motions for leave to supplement his § 2255 motion. ECF Nos. 233/236, 239. Again, out of an abundance of caution, the Government was instructed to submit a supplemental response, ECF No. 240, and on September 18, 2017, such response was filed. ECF No. 244. On October 5, 2017, counsel for Petitioner filed a reply to the Government's September 2017 response. This matter is therefore now ripe for review.


         A federal prisoner, in custody, may collaterally attack his sentence or conviction by moving the district court “to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). To obtain such relief, a petitioner must prove by a preponderance of the evidence that his sentence or conviction was "imposed in violation of the Constitution or laws of the United States, " that the district court "was without jurisdiction to impose such sentence, " that the sentence exceeds "the maximum authorized bylaw, " or that the sentence or conviction is "otherwise subject to collateral attack." Id.; see Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         A § 2255 motion is, in essence, a statutory federal habeas corpus action that enables a petitioner to collaterally attack his sentence or conviction through the filing of a new proceeding, as contrasted with a direct appeal.[3] United States v. Hadden, 475 F.3d 652, 663 (4th Cir. 2007). With limited exceptions, a petitioner advancing new claims asserted for the first time in a § 2255 motion "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). The "higher hurdle" applies because, once a Petitioner's opportunity to pursue a direct appeal has been waived or exhausted, there is "a final judgment [that] commands respect." Id. at 164-65.

         A § 2255 petitioner need not, however, overcome such "higher hurdle" to advance a freestanding claim of ineffective assistance of counsel, which is properly asserted for the first time in a § 2255 motion. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) ("[I]t is well settled that “a claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance.'" (quoting United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992))). To obtain relief based on an allegation of ineffective assistance, a petitioner must establish both: (1) that counsel's performance was so deficient that it fell below an objective standard of reasonableness; and (2) that counsel's inadequate performance caused the petitioner prejudice. Strickland v. Washington, 466 U.S. 668, 687-88 (1984) . Satisfying the first prong of Strickland requires a petitioner to establish that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. The second prong of Strickland requires a petitioner to "affirmatively prove prejudice, " which requires a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 693-94.WA reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. If a petitioner fails to prove either of the two prongs of the Strickland test, a district court need not evaluate the other prong. Moore v. Hardee, 723 F.3d 488, 500 (4th Cir. 2013).

         The prejudice prong of the Strickland test is slightly modified when a petitioner challenges trial counsel's handling of plea negotiations; in such circumstances petitioners must typically "demonstrate a reasonable probability that (1) 'they would have accepted the earlier plea offer had they been afforded effective assistance of counsel, ' and (2) 'the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it . . . .'" Merzbacher v. Shearin, 706 F.3d 356, 366 (4th Cir. 2013) (quoting Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012)); see Lafler v. Cooper, 566 U.S. 156, 163 (2012) ("In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice.").

         Congress and the President have established a one-year limitations period within which a petitioner must file a § 2255 motion. 28 U.S.C. § 2255(f). The one-year limitations period begins running on the latest of four dates: (1) the "date on which the judgment of conviction becomes final"; (2) the date on which certain government-created impediments to filing are removed; (3) the date on which a new right has been recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which facts supporting the claim could be discovered through due diligence. Id. (emphasis added).

         III. DISCUSSION - ORIGINAL § 2255

         Petitioner's original § 2255 motion advances the following four claims, all of which assert that trial counsel provided ineffective assistance: (1) failure to advise Petitioner of the benefits of pleading guilty; (2) failure to investigate; (3) failure to object to jury instructions; and (4) failure to contest restitution. Because Petitioner's § 2255 motion was filed exactly one-year after the Supreme Court denied certiorari, the Government does not contest the timeliness of such motion as it was filed within one year of the Mate on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f); see Segers, 271 F.3d at 186.

         A. Failure to Advise of Benefits of Pleading Guilty

         Petitioner asserts that his trial counsel was ineffective for failing to inform Petitioner of the benefits of pleading guilty, failing to inform Petitioner of the statutory maximum punishments, and failing to explore the possibility of a negotiated plea with the Government. In support of such allegations, Petitioner submits an affidavit asserting that, upon asking his lawyer what the "maximum sentence would be" if Petitioner was "convicted of the charged offenses, " trial counsel indicated that "he did not know what the maximum sentence might be." ECF No. 199-1, at 2.[4] Additionally, Petitioner states in his sworn affidavit that "[k]nowing how serious the charges in this case were, " he asked his lawyer to "explore the possibility of a guilty plea" with the Government, but that trial counsel "never responded" to such inquiry, and as far as Petitioner knows, counsel never explored such possibility. Id. In his reply brief, which was submitted by habeas counsel and does not include a sworn affirmation from Petitioner, Petitioner asserts that had he known that he faced up to twenty years on the robbery charge and a consecutive sentence on the gun charge, and had he known that he could plead guilty and receive a Guideline reduction for acceptance of responsibility, he "would have pie[d] guilty long before a trial."[5] ECF No. 224, at 2. In response to such allegations, defense counsel submitted an affidavit stating as follows:

I met with [Mr. Mitchell] 8-10 times prior to trial to prepare the case. From day one he always told me he was not guilty and was never interested in any plea. I certainly let him know how much time he could get if he took the case to trial, but he was adamant he did not do anything wrong and we MUST try the case.

ECF No. 210-1 H 4 (emphasis added).

         Were the Court left with only such diverging sworn statements, it might conclude that an evidentiary hearing was necessary in order to avoid making credibility determinations on the papers. However, as discussed below, there is ample evidence in the record, including transcripts from hearings held before the undersigned judge, to demonstrate that Petitioner's post-conviction self-serving statements that he would have pled guilty are not credible and fail to warrant relief under § 2255.

         1. Prejudice

         In the context of a foregone guilty plea, a petitioner can demonstrate Strickland prejudice by showing that there is a reasonable probability that, but for counsel's alleged failures in handling the plea process, the petitioner would have either succeeded in securing a plea deal from the Government, or pled guilty "straight up" to all of the charges without a plea agreement. See Merzbacher, 706 F.3d at 366. Although such legal test "focuses the inquiry on a subjective question, the answer to that question must be reached through an objective analysis." Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) . "Objective factors relevant to the prejudice analysis" include: (a) "the potential strength of the government's case";

         (b) "the disparity between the government's plea offer and a petitioner's sentencing exposure if convicted at trial"; and

         (c) a petitioner's "repeated protestations of innocence throughout trial." Wolford v. United States, 722 F.Supp.2d 664, 691 (E.D. Va. 2010) (internal citations and quotation marks omitted). While it appears to remain unresolved in this Circuit whether a petitioner can establish prejudice solely through his own testimony about his plea decision, or whether independent objective evidence must also be presented, the Fourth Circuit has recognized that a petitioner's post-hoc and "self serving assertion that he would have accepted the plea is, as both the state and federal courts recognized, the type of testimony . . . subject to heavy skepticism." Merzbacher, 706 F.3d at 366-67 (citations and quotation marks omitted) (omission in original); see Hooper, 845 F.2d at 475 (" [W] e do not put great weight in [the defendant's] representation that if, prior to accepting the plea bargain, he had received a psychiatric report ... he would have chosen to go to trial" because [a]lthough it carries some probative value, such a statement suffers from obvious credibility problems and must be evaluated in light of the circumstances the defendant would have faced at the time of his decision.").

         a. The Court first turns to the relevant objective factors that inform the analysis of whether there is a reasonable probability that, but for counsel's alleged failures in handling the plea process, Petitioner would have either succeeded in securing a plea deal from the Government, or pled guilty "straight up" to all of the charges without a plea agreement. If the Government has a relatively weak case, and/or if the defense has a viable trial strategy with a reasonable probability of securing an acquittal to all charges, common sense suggests that a defendant would not normally plead "straight up" or accept anything other than a very favorable plea deal. Here, the relative strength of the Government's case, as compared to the viability of the Petitioner's trial defense, lends little support to Petitioner's § 2255 motion because the Petitioner's trial defense-that the victim of the carjacking/robbery was actually a willing conspirator who helped stage the robbery to avoid detection from his boss-was a viable and complete defense to all of the felony charges in this case. In fact, Petitioner's trial counsel, who is a very experienced defense attorney, previously characterized such defense as having "about a 50/50 chance" of securing an acquittal. Hearing Tr. 44, ECF No. 247. The fact that Petitioner's co-defendant also proceeded to trial on the same defense theory further underscores the viability of the defense strategy in this case.


         Considering the sentencing exposure and risk/benefit of proceeding to trial, Petitioner's post-hoc contention that he would have pled guilty "straight up" to all of the charges had he only known how much imprisonment he was facing suffers from multiple flaws. First, Petitioner asserts in his affidavit in support of his § 2255 motion that his pretrial actions were taken "[k] nowing how serious the charges in this case were." ECF No. 199-1. Such statement obviously conflicts with Petitioner's current claim that he lacked knowledge of the seriousness of the charged offenses.

         Second, there appears to have been a very minimal forgone benefit associated with proceeding to trial as compared to entering a guilty plea, regardless of whether Petitioner pled guilty "straight up" to all of the charges, or entered into a hypothetical plea agreement similar to the plea deal entered into by Petitioner's co-defendant Travis Williams. Such minimal benefit, which is outlined below, must be weighed against the realistic possibility that Petitioner would be acquitted on all charges and face no federal prison time.

         Petitioner's post-hoc statements contend that Petitioner's plea decision turned on the lack of knowledge that he could have received a 3-level Guideline credit for acceptance of responsibility had he pled guilty. A 3-level credit would have reduced Petitioner's advisory Guideline range from 168-210 months to 121-151 months. ECF No. 159. While, at first blush, this appears to be a not insignificant four to five year decrease in the advisory sentence, it does not take into account the sentencing exposure Petitioner faced on Count Four, the "brandishing" a firearm count that required a consecutive sentence to the sentence imposed on the other counts. Had Petitioner pled guilty (either "straight up" or with a plea agreement similar to his co-defendant's) he would have received a seven-year consecutive sentence on the brandishing a firearm charge. By proceeding to trial, Petitioner actually received a benefit as to Count Four, as the jury convicted Petitioner of the lesser-included offense of "possession" of a firearm, which carries with it a five-year mandatory consecutive sentence. Accordingly, a comparison of Petitioner's actual sentencing exposure after having proceeded to trial (168-210 months plus 60 months consecutive) with his exposure had he entered a plea of guilty, (121-151 months plus 84 months consecutive) yields a difference in the total recommended sentence of only approximately two to three years. Moreover, the current record raises doubt as to whether Petitioner would have qualified for the 3-level credit for acceptance of responsibility even if he had pled guilty, in light of the fact that: (1) Petitioner intimidated a witness and received an enhancement for obstruction of justice, see U.S.S.G. § 3E1.1 App. n.4 ("Conduct resulting in an enhancement under § 3C1.1 [(Obstruction)] . . . ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct."); and (2) as discussed below, to this day, Petitioner still asserts that he is not guilty of any of the charged felony offenses because the "victim" of the robbery/carjacking was actually an accomplice in a jointly planned theft.[6]

         c. In addition to the above factors, Petitioner's repeated protestations of innocence before trial, during trial (including the adoption of his co-defendant's testimony) and post-trial, protestations that continue through the filing of his § 2255 motion, provide compelling evidence that undercut Petitioner's post-hoc assertion that he would have pled guilty had counsel provided additional advice on the issue. Notably, Petitioner swears in his § 2255 affidavit that, prior to trial, he informed defense counsel that no force or weapon was used during what he characterizes as a theft, and that he, and his co-conspirators that were charged in this case, met with Wilson (the victim) at a McDonald's restaurant immediately prior to the theft. ECF No. 199-1 Hf 9-10.

         The official transcript from multiple in-court proceedings similarly document Petitioner's consistent assertions of innocence. First, at the outset of trial, the Court made an inquiry into plea discussions, and the following exchange occurred:

THE COURT: All right. Now counsel, before we get started, as you know, since the Supreme Court's decision in Missouri v. Frye I need to ask questions -- even though we're going to trial, I think I need to also ask the questions that I typically would ask in a guilty plea about any prior plea discussions. So Mr. Zlotnick or Mr. Samuels, have any plea offers been made by the United States in this case?
MR. ZLOTNICK: There have been no plea offers made by the United States in this case, Your Honor. Both defendants have indicated through their lawyers to me that they intended to proceed to trial from, at all stages.
THE COURT: Okay. Mr. Kimball, is that consistent with your understanding of how things have proceeded?
MR. KIMBALL[McGhee'a counsel]: Yes, Judge. In all candor, I did try to make some offer to them that they were not interested in as far as perhaps letting this case be resolved in state court on a larceny. They weren't interested. I did --
THE COURT: You did that after talking with your client?
MR. KIMBALL: Right, Judge. But there have been no plea offers from the ...

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