United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
S. DAVIS UNITED STATES DISTRICT JUDGE.
matter is before the Court on a Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody, filed by Leroy Scott, Jr.
("Petitioner"). ECF No. 79. Petitioner's §
2255 motion contains five claims, including various
challenges to the adequacy of defense counsel's
representation. Id. The Government filed a brief in
opposition to Petitioner's motion, ECF No. 86, and
Petitioner has filed: (1) a reply brief in support of his
first four claims, ECF No. 88; and (2) amotion seeking
"To Strike Ground Five" from his § 2255
motion, ECF No. 87. This Court previously
GRANTED Petitioner's motion addressing
Ground Five, thereby deeming Ground Five
"withdrawn." ECF No. 94. In light of factual
conflicts in the record relevant to Petitioner's
remaining four claims, the Court appointed new counsel to
represent Petitioner and scheduled an evidentiary hearing.
Id. Such hearing was conducted on November 20, 2017,
and both Petitioner and his original defense counsel
(hereinafter "trial counsel") testified at such
hearing. Petitioner7 s § 2255 motion is now ripe for
FACTUAL AND PROCEDURAL BACKGROUND
early 2013, a grand jury returned a five-count indictment
charging Petitioner with conspiracy counts and substantive
counts associated with a retaliatory killing of a
witness/informant and additional attempted retaliatory
killings of other suspected witnesses. ECF No. 3. At the time
he was indicted in this case, Petitioner had served
approximately one-third of a 3 0-year prison term imposed in
a previous federal case stemming from a drug trafficking
conspiracy. Case No. 2:03cr52. While incarcerated on these
earlier drug and firearm charges, Petitioner was interviewed
by two investigators at the federal prison facility where he
was housed. After being read his Miranda rights, Petitioner
knowingly signed a Miranda waiver form, and provided a
detailed confession outlining his involvement, many years
ago, in the homicide and attempted homicides at issue in this
case. ECF No. 44, at 81-84.
the death penalty was an available punishment for all five
indicted offenses in this case. However, approximately four
months after the indictment was returned, the Government
indicated at a status conference, held in open court, that it
would not be seeking the death penalty. ECF Nos. 14,
78. Petitioner was present at such hearing with his trial
three weeks after the Government announced its intention not
to seek the death penalty, Petitioner, with the assistance of
trial counsel, filed a motion seeking to suppress his
confession, asserting: (1) that he asked investigators for a
lawyer prior to confessing; and (2) that his confession was
otherwise involuntary. ECF No. 17, at 3-4. This Court
conducted an evidentiary hearing on the suppression motion,
and at the conclusion of such hearing, the Court denied the
suppression motion, expressly finding that Petitioner's
testimony regarding the details of his confession was not
credible. ECF No. 44, at 94-97.
subsequently entered into a written plea agreement with the
Government, formally admitting his guilt to all five charges.
ECF No. 40. Such written agreement provides for a binding
stipulated sentence of "life" as to each of the
five counts, to include the "Use of a Firearm resulting
in Death" charged in Count Five-an offense for which the
punishment must be imposed to run consecutively to the
punishment on the other counts. Id. ¶ 4.
Although the Government had previously indicated its
intention not to seek the death penalty, the language of the
plea agreement states that the Government agrees not to seek
the death penalty " [i]n return for the defendant's
pleas of guilty and the defendant's agreement to a
sentence of life imprisonment" on all five counts.
Id. ¶ 1.
outlined in a motion filed by trial counsel shortly before
the guilty plea hearing, ECF No. 38, and as discussed at both
the guilty plea hearing, ECF No. 54, and at the recently
conducted § 2255 evidentiary hearing, the Government
initially offered Petitioner the opportunity to cooperate in
the hope of obtaining a sentence reduction. Trial counsel
discussed such offer with Petitioner on multiple occasions,
and although Petitioner was initially undecided regarding
both the plea offer and cooperation, he eventually requested
that a proffer session be scheduled. ECF No. 38 ¶¶
6-7.Petitioner appeared for the proffer
session, with his counsel, but such session was canceled when
Petitioner decided not to cooperate. ECF No. 38 ¶¶
7-8. Petitioner did ultimately elect to plead guilty to the
written plea agreement proposed by the Government, but he did
so only after the cooperation language was removed. ECF No.
54, at 10. While the record created at the time of
Petitioner's plea establishes that the original plea
offer did not include any reservation of appellate rights,
the written plea agreement that was ultimately signed by
Petitioner includes a partial reservation of appeal rights
that allowed Petitioner to challenge this Court's denial
of Petitioner's suppression motion. Id.; ECF No.
40 ¶ 5.
with the terms of the plea agreement, Petitioner was
subsequently sentenced to a concurrent term of life
imprisonment on Counts One through Four, and a consecutive
term of life imprisonment on Count Five. ECF No. 59.
Petitioner filed a timely appeal to the United States Court
of Appeals for the Fourth Circuit challenging this
Court's denial of the motion to suppress, and the Fourth
Circuit affirmed this Court's suppression ruling.
United States v. Scott, 578 Fed.Appx. 199, 200 (4th
Cir. 2014) . Petitioner subsequently filed the pending §
2255 motion which is ripe for resolution.
STANDARD OF REVIEW
federal prisoner, in custody, may collaterally attack his
sentence or conviction by moving the district court "to
vacate, set aside or correct the sentence." 28U.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
by law, " 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).
§ 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. 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 iswa final judgment [that]
commands respect." Id. at 164-65. Accordingly,
the doctrine of procedural default generally prevents a
district court from reaching the merits of § 2255 claims
that were not raised on direct appeal unless a petitioner can
show: (1) "cause" excusing the failure to directly
appeal such alleged errors; and (2) "actual prejudice
resulting from the errors of which he complains."
United States v. Mikalajunas, 186 F.3d 490, 492-93
(4th Cir. 1999).
§ 2255 petitioner need not, however, overcome the
procedural default bar 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. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Id. at 694.
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 ...