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Mabine v. United States

United States District Court, E.D. Virginia, Norfolk Division

December 11, 2017

RONALD LEE MABINE, Petitioner,
v.
UNITED STATES of AMERICA, Respondent.

          OPINION & ORDER

          HENRY COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on pro se Petitioner Ronald Lee Mabine's ("Petitioner's") Motion to Vacate under 28 U.S.C. § 2255 ("Motion"). Doc. 81. Petitioner filed the Motion on June 2, 2016. Id. Petitioner alleges ineffective assistance of both trial and appellate counsel, and also argues that his conviction on Count Two should be set aside because Hobbs Act robbery does not qualify as a "crime of violence" under 18 U.S.C. § 924(c) ("924(c)"). Petitioner requests that counsel be appointed to assist him in this matter. On June 20, 2016, this Court ordered the Government to respond to the Motion, Doc. 82, which the Government did on August 19, 2016, Doc. 83. Petitioner replied on November 10, 2016. Doc. 86.

         Petitioner makes several distinct claims of ineffective assistance of counsel. Petitioner argues that his trial counsel was ineffective for the following reasons: (1) coercing Petitioner into signing stipulations at trial; (2) failure to present certain evidence and witnesses at trial, including Petitioner himself; (3) failure to investigate and raise a claim of possible witness tampering; and (4) failure to adequately challenge and move to suppress all of the evidence presented by the Government in this case. Petitioner also brings a claim regarding the alleged ineffective assistance of his appellate counsel.

         For the reasons stated herein, the Court DENIES Petitioner's Motion, Doc. 81, IN PART and RESERVES RULING on the remainder. The Court DISMISSES Petitioner's claim of ineffective assistance of appellate counsel. The Court DISMISSES Petitioner's claim of ineffective assistance of trial counsel, as to the decisions (1) to sign the stipulations and (2) not to present any evidence at trial. The Court DISMISSES Petitioner's claim that his Hobbs Act robbery conviction does not qualify as a crime of violence under 924(c). The Court RESERVES RULING on Petitioner's claim of ineffective assistance of trial counsel, as to trial counsel's (3) failure to investigate and raise a claim of witness tampering and (4) failure to adequately challenge evidence offered by the Government. In order to assist the Court in its resolution of the remainder of Petitioner's Motion, the Court ORDERS trial counsel, attorney Larry M. Dash, to file an affidavit responding to these remaining ineffective assistance claims. Mr. Dash need not respond to the claims that have been dismissed in this Order, but shall explain his decisions not to raise a claim of witness tampering and not to move to suppress the evidence offered by the Government.

         I. BACKGROUND

         The following facts were established at trial. On April 24, 2014, Petitioner applied for a loan with Allied Cash Advance, located in Norfolk, Virginia. Tr. 70. Petitioner's application was denied. Tr. 74. On April 29, 2014, the same Allied Cash Advance was robbed. Tr. 77. The employee on duty that day, Jessica Robertson, testified that a man entered the store sometime after 1:00 p.m., pointed a gun at her, and demanded that Ms. Robertson give him all the money that was in the register. Tr. 77-78. Ms. Robertson testified that the robber was a short, African-American male who was wearing grey sweatpants, a black sweatshirt, black-rimmed glasses with thick lenses and a square frame, and something covering the bottom half of his face. Tr. 79, 90. At one point, the robber cocked the gun and pointed it at Ms. Robertson, allowing the piece of cloth covering his face to fall so that Ms. Robertson could see his entire face. Tr. 80. The robber took all of the money in the cash register, amounting to four (4) $100 bills, four (4) $5 bills, and nine (9) $1 bills, a total of $429. See Tr. 87. The robber then instructed Ms. Robertson to lock herself in the store bathroom. Tr. 86. Ms. Robertson subsequently called the police.

         Around 1:50 p.m., Norfolk Police Lieutenant Alex McConnaghy located Petitioner in a dumpster behind the Allied Cash Advance store. Tr. 120-21. Also found in the dumpster were a pair of grey sweatpants, a black shirt, a blue scarf or head cover, a black hooded sweatshirt, and a fully loaded silver Raven Arms .25 semi-automatic pistol. Tr. 120, 169. Norfolk Police Officer Cody Morgan removed Petitioner from the dumpster and patted him down, finding four (4) $100 bills in Petitioner's left pocket. Id. Ms. Robertson later identified Petitioner as the man who robbed the Allied Cash Advance. Tr. 91-93.

         On August 6, 2014, a three (3) count Criminal Indictment was filed in open court against Petitioner. Doc. 1. The Indictment charged Petitioner with:

Count One: Interference with Commerce by Robbery, in violation of 18 U.S.C. § 1951(a);
Count Two: Brandishing a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and
Count Three: Felon in Possession of Firearm, in violation of 18 U.S.C. §§ 922(g), 924(a)(2), and 924(c).

Id. On October 29, 2014, a jury found Petitioner guilty of all three (3) counts. See Docs. 30, 34. On January 29, 2015, Petitioner filed a Motion alleging ineffective assistance of counsel, specifically, his trial counsel Larry M. Dash. Doc. 42. On February 20, 2015, Petitioner filed a Motion for Judgment of Acquittal. Doc. 44. On March 17, 2015, the Court DENIED Petitioner's Motion for Judgment of Acquittal, and sentenced Petitioner to a term of imprisonment of three hundred eighty-four (384) months and fifteen (15) years of supervised release. Doc. 49. The term of imprisonment consists of one hundred twenty (120) months on Count One, eighty-four (84) months on Count Two, and one hundred eighty (180) months on Count Three, all to be served consecutively. See Id. at 2.

         On April 1, 2015, Petitioner appealed the Court's final judgment entered March 18, 2015. Doc. 54. On October 26, 2015, the Court of Appeals affirmed this Court's judgment. Doc. 70. On November 2, 2015, this Court entered a Notice and Order advising Petitioner that the Court would construe his Motion regarding his ineffective assistance of counsel claim as a § 2255 Motion unless Petitioner responded in thirty (30) days. Doc. 71. On November 17, 2015, the judgment of the Court of Appeals affirming this Court's judgment took effect. Doc. 74.

         The Court entered a second Notice and Order on December 29, 2015, again advising Petitioner of the Court's intent to construe his ineffective assistance claim as a § 2255 Motion. Doc. 77. On January 7, 2016, the Court received a letter from Petitioner asking to withdraw his Motion, Doc. 78, and on January 8, 2016, the Court ordered that the Motion be withdrawn, Doc. 79.

         Petitioner filed the instant Motion on June 2, 2016. Doc. 81. On June 20, 2016, the Court ordered the Government to respond to the Motion within sixty (60) days. Doc. 82. On August 19, 2016, the Government responded in opposition to Petitioner's Motion. Doc. 83. On November 10, 2016, Petitioner replied in further support of his Motion. Doc. 86.

         II. LEGAL STANDARDS

         A. Section 2255

         Section 2255 is designed to correct fundamental constitutional or jurisdictional errors, which would otherwise '"inherently result[] 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 (1962)). In order to move the Court to vacate, set aside or correct a sentence under § 2255, a petitioner must prove that one of the following occurred: (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; (3) "that the sentence was in excess of the maximum authorized by law;" or (4) that the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). A petitioner bears the burden of proving his grounds for collateral review of his sentence by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958); Hall v. United States, 30 F.Supp.2d 883, 889 (E.D. Va. 1998).

         The scope of a § 2255 collateral attack is far more limited than an appeal, and thus a "collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165 (1982). "[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." Id. at 167. Although the doctrine of procedural default generally bars claims not previously raised, a freestanding claim of ineffective assistance of counsel may be properly asserted for the first time in a § 2255 petition. United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). Generally, an evidentiary hearing is required under 28 U.S.C. § 2255 unless it is clear from the pleadings, files, and records that a movant is not entitled to relief. United States v. Witherspoon, 231 F.3d 923, 925-26 (4th Cir. 2000); see also 28 U.S.C. § 2255(b).

         A prisoner must file a § 2255 motion within a one (1) year period of limitation, which runs from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

         B. Ineffective Assistance of Counsel

         The Sixth Amendment of the Constitution safeguards a defendant's right to "have the assistance of counsel for his defense." U.S. Const, amend. VI. This right exists to "ensure that criminal defendants receive a fair trial." Strickland v. Washington, 466 U.S. 668, 689 (1984). To establish a claim for ineffective assistance of counsel, a defendant must satisfy a two-prong test. Id. at 668-88. "First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 687. The burden of proving both prongs of Strickland, performance and prejudice, rests on the defendant. Fields ...


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