United States District Court, E.D. Virginia, Norfolk Division
OPINION & ORDER
COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
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. §
Count Three: Felon in Possession of Firearm,
in violation of 18 U.S.C. §§ 922(g), 924(a)(2), and
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.
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.
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.
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.
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.
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).
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
(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
(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).
Ineffective Assistance of Counsel
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 ...