United States District Court, E.D. Virginia
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson, United stales District Judge
the Court is a Motion submitted pursuant to Title 28, United
States Code, Section, 2255 to Vacate, Set Aside, or Correct
Sentence by a person in federal custody ("§ 2255
Petition"), filed by pro se litigant Larry
Eugene Lingenfelter ("Petitioner"). For the reasons
set forth below, Petitioner's § 2255 Petition is
FACTUAL AND PROCEDURAL HISTORY
September 22, 2010, a federal grand jury returned a Criminal
Indictment charging Petitioner with three counts. ECF No. 30.
Count One charged Petitioner with Conspiracy to Commit Murder
for Hire, in violation of 18 U.S.C. § 1958(a).
Id. Counts Two and Three each charged Petitioner
with Murder for Hire, in violation of 18 U.S.C. §§
1958(a) and 2. Id.
February 1, 2011, following a six-day trial, a jury convicted
Petitioner of all three counts. ECF No. 80. On May 18, 2011,
Petitioner was sentenced to a consecutive 110-month
imprisonment sentence on each of the three counts, resulting
in a total sentence of 330 months imprisonment. ECF No. 93.
Petitioner appealed on May 31, 2011. ECF No. 94. The United
States Court of Appeals for the Fourth Circuit ("Fourth
Circuit") affirmed the conviction on April 2, 2012. ECF
October 31, 2014, Petitioner, acting pro se, filed
the instant § 2255 Petition. ECF No. 125. In his §
2255 Petition, Petitioner raised two grounds for relief, both
relating to ineffective assistance of counsel. He alleges he
received constitutionally ineffective assistance of counsel
because: (1) his attorney failed to communicate the
government's second plea offer; and (2) counsel failed to
adequately investigate his case and present substantial
evidence in mitigation of guilt at trial and on appeal.
Id. On August 5, 2016, this Court dismissed
Petitioner's § 2255 Petition on procedural grounds.
ECF No. 138.
through counsel, appealed on September 30, 2016. ECF No. 142.
On April 20, 2017, the Fourth Circuit granted a certificate
of appealability on the issue of "whether Lingenfelter
was deprived of the effective assistance of counsel through
his counsel's alleged failure to apprise him of a plea
offer . . . ." ECF No. 148 at 3. The Fourth Circuit
denied a certification of appealability on Petitioner's
second allegation (i.e., "the assertion of ineffective
assistance based on counsel's decision not to introduce
certain evidence at trial."). Id. at 4. The
Fourth Circuit vacated this Court's dismissal order and
remanded for further proceedings. Id.
light of the Fourth Circuit's ruling, this Court ordered
Petitioner's former counsel and the United States
Attorney to respond to Petitioner's § 2255 Petition.
ECF No. 150. On June 9, 2017, Petitioner's former counsel
filed affidavits. ECF No. 151. On June 13, 2017, the United
States Attorney filed a response. ECF No. 153. On June 16,
2017, Petitioner, through counsel, filed a reply. ECF No.
154. Finally, on October 19, 2017, the Court held an
evidentiary hearing. ECF No. 157.
Section 2255 Generally
2255 of Title 28 of the United States Code provides prisoners
in federal custody a means of collateral attack against their
sentence as follows:
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(a). It is within the discretion of the
district court to deny § 2255 motions without a hearing.
Raines v. United States, 423 F.2d 526, 529-31 (4th
Cir. 1970). When deciding a § 2255 motion, the court
must grant a prompt hearing "[u]nless the motion and the
files and records of the case conclusively show that the
prisoner is entitled to no relief, " id. §
2255(b); however, the petitioner bears the burden of proving
his claim by a preponderance of the evidence, see Miller
v. United States, 261 F.2d 546, 547 (4th Cir. 1958).
Additionally, pro se filers are entitled to a more
liberal construction of their pleadings. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
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