United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
S. DAVIS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Allen Andre Brown's
("Petitioner") Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No.
47. Petitioner's § 2255 motion advances a single
claim alleging ineffective assistance of counsel based on
defense counsel's performance at sentencing. The
Government failed to file a timely brief in opposition, and
after Petitioner objected to the Government's late-filed
responsive brief, the Government filed a motion for leave to
file its brief out-of-time. ECF No. 53. For the reasons set
forth below, Petitioner's § 2255 motion is DENIED on
the merits. The Court also DENIES the Government's motion
seeking to file a late brief as the Government fails to
demonstrate excusable neglect for its late filing. However,
the Court alternatively finds that even if the
Government's late-filed brief, and Petitioner's
subsequent reply brief, are both considered, the Court's
ruling denying Petitioner's § 2255 motion remains
unchanged as, regardless of the papers considered,
Petitioner's § 2255 motion lacks merit.
FACTUAL AND PROCEDURAL BACKGROUND
to a written plea agreement, Petitioner entered a plea of
guilty to a single count criminal information charging him
with conspiracy to distribute narcotics, in violation of 21
U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A) and
841(b)(1)(B). ECF No. 16. In advance of sentencing, a written
Presentence Investigation Report ("PSR") was
prepared, and the PSR recommended that the Court classify
Petitioner as a "Career Offender" under the federal
sentencing Guidelines in light of his two prior felony
convictions for "controlled substance offense[s]."
U.S.S.G. § 4B1.1; see ECF No. 29. Based on the
quantity of drugs involved in the instant case, as well as
Petitioner's extensive criminal record, the advisory
Guideline calculation in the absence of such Career Offender
designation would have been as follows: Offense Level 31,
Criminal History Category V, with an advisory Guideline range
of 168-210 months imprisonment. With the application of the
Career Offender designation, Petitioner's advisory
Guideline calculation was as follows: Offense Level 34,
Criminal History Category VI, with an advisory Guideline
range of 262-327 months imprisonment.
sentencing, the Court overruled an objection to the Guideline
calculation advanced by defense counsel,  adopted the PSR
as written (including the Career Offender Guideline range of
262-327 months), and heard argument from counsel for both
parties on the § 3553(a) statutory sentencing factors.
Petitioner's counsel argued for a variance sentence
substantially below the low-end of the advisory Guideline
range, asserting that the Career Offender designation
overstated the seriousness of Petitioner's criminal
history because one of the two drug offenses that resulted in
the Career Offender designation was distribution of drugs by
accommodation-that is, sharing drugs with another
person rather than selling drugs for range in the absence of
the Career Offender designation. Such a profit. See
ECF No. 31, at 1-2. The Court agreed with defense counsel
that Petitioner's accommodation offense "was a crime
involving lessor culpability than a typical drug trafficking
crime, thus supporting a variance below the low-end of the
Career Offender Guideline range." ECF No. 35. For this
reason, considered in conjunction with other mitigating
factors, the Court imposed a variance sentence of 222 months
imprisonment. ECF No. 34.
did not appeal his sentence or conviction. Prior to filing
the instant § 2255 motion, Petitioner filed a previous
§ 2255 motion. ECF No. 38. Such initial § 2255
motion was dismissed by this Court without a ruling on the
merits and without prejudice to Petitioner's right to
file another timely § 2255 motion. ECF No. 43.
Petitioner subsequently filed the instant timely § 2255
motion, ECF No. 47, and such motion is now ripe for
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." 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). Because a § 2255 motion
"is ordinarily presented to the judge who presided at
the original conviction and sentencing . . . the judge's
recollection of the events at issue" may inform the
resolution of the motion. Blackledge v. Allison, 431
U.S. 63, 74 n.4 (1977).
§ 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 is "a final judgment [that] commands
respect." Id. at 164-65.
§ 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
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).
§ 2255 motion advances a single ground for relief,
alleging that defense counsel was ineffective at sentencing
for failing to file a motion/objection challenging
Petitioner's classification as a Career Offender. More
specifically, Petitioner asserts that because one of his
prior Virginia state convictions was for drug distribution
"by accommodation, " such offense does not qualify
as a "controlled substance offense" under the
federal sentencing Guidelines. As explained below, neither
state law nor federal law support Petitioner's position,
and his ineffective assistance claim therefore fails.