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Phillips-Cooper v. United States

United States District Court, E.D. Virginia, Newport News Division

March 28, 2018



          Raymond A. Jackson United States District Judge.

         Before the Court is pro se litigant Margaret Amber Phillips-Cooper's ("Petitioner") Motion to Vacate, Set Aside, or Correct a Sentence, pursuant to Title 28, United States Code, Section 2255 ("2255 Motion"). Having thoroughly reviewed the motion and filings in this case, the Court finds that no hearing is necessary to address Petitioner's Motion. For the reasons set forth below, Petitioner's § 2255 Motion is DENIED.


         This case involves two businesses, Blazin Herbs and Hampton Pipe and Tobacco, whose agents were charged with selling and distributing synthetic cannabinoids, namely an illicit substance commonly referred to as "spice." ECF No. 307. Petitioner was part-owner of Blazin Herbs and also served as general manager of Hampton Pipe and Tobacco, where she oversaw inventory, product supply, and the employees of the store who sold the product to customers. Id. A Grand Jury indicted Petitioner on September 8, 2015, and a Superseding Indictment was filed on February 10, 2016. ECF No. 205.

         On July 14, 2016, Petitioner pled guilty to Count 20 of the Superseding Indictment, Use of a Communication Facility in violation of 21 U.S.C. § 843. ECF No. 306, 307. On November 21, 2016, the Court sentenced Petitioner to forty-eight (48) months imprisonment. ECF No. 575. Petitioner filed the instant Motion on March 24, 2017. ECF No. 712. The Court ordered the United States Attorney to respond to Petitioner's petition on April 5, 2017. ECF No. 721. Respondent filed a response to Petitioner's Motion on July 10, 2017. ECF No. 812. Petitioner filed a response to Respondent's response on August 24, 2017. ECF No. 832.


         A. Section 2255 Generally

         When a petitioner in federal custody wishes to collaterally attack his sentence or conviction, the appropriate motion is a § 2255 Petition. United States v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003). Section 2255 of Title 28 of the United States Code governs postconviction relief for federal prisoners. It provides in pertinent part:

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 the sentence.

28 U.S.C. § 2255.

         In a proceeding to vacate a judgment of conviction, the petitioner bears the burden of proving his or her claim by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Additionally, pro se litigants are entitled to more liberal construction of their pleadings. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), cert, denied, 439 U.S. 970 (1978) (providing that a pro se petitioner is entitled to have his petition construed liberally and is held to less stringent standards than an attorney drafting such a complaint).

         When deciding a § 2255 motion, the court need not hold a hearing if "the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Motions under § 2255 "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178 (1947). Accordingly, 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 collateral motion instead of on direct appeal. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).


         Petitioner raises two grounds for relief. In Ground One, she alleges ineffective assistance of counsel due to a conflict of interest. ECF No. 712 at 5. In Ground Two, she alleges that she did not waive her Sixth Amendment right to conflict-free representation and because counsel was operating under a conflict of interest, her sentence should be automatically reversed. Id. at 22-23. Having thoroughly reviewed the motions and filings, the Court finds that a hearing is not necessary and will address each of Petitioner's arguments in turn.

         A. Ineffective Assistance Due to a Conflict of Interest

         First, Petitioner generally alleges ineffective assistance of counsel due to a conflict of interest. ECF No. 712 at 5. Having reviewed the materials presented and the parties' arguments, the Court finds that Petitioner fails to prove her claim.

         The Court finds that Petitioner fails to identify an actual conflict of interest in this case. As relating to Sixth Amendment claims of ineffective assistance of counsel, the standard for determining conflicts of interest differs from Strickland as prejudice is presumed if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance." Strickland v. Washington, 466 U.S. 668, 692 (1984) (citing Cuyler v. Sullivan, 446 U.S. 345-50 (1980)). If a defendant can establish both elements, reversal is automatic. Holloway v. Arkansas, 435 U.S. 475 (1978). Typically, a conflict of interest arises in cases where the attorney is representing multiple defendants. See generally Culyer v. Sullivan, 446 U.S. 335 (1980); Holloway, 435 U.S. at 482. However, joint representation is not per se violative of constitutional guarantees of effective assistance of counsel. Id. In fact, the defendant may waive his right to the assistance of an attorney unhindered by a conflict of interest. Id. at 483 n.5 (citing Glasser v. United States, 315 U.S. 60, 70 (1942)).

         Based on the facts and filings submitted by both parties, the Court finds that there was no conflict of interest as counsel only represented Petitioner. In Petitioner's Memorandum accompanying her Motion, she states, "Mr. Jason Alan Dunn had a conflict of interest because, while representing Cooper, ..." and the statement is incomplete. ECF No. 712 at 18. The Court is mindful that Petitioner is proceeding in this matter pro se and is entitled to have her pleadings "liberally construed" and "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, even with a liberal construction of Petitioner's claims she fails to demonstrate how counsel actively represented conflicting interests. This was not a case in which counsel represented multiple defendants, thus Petitioner's claim fails. As such, here, there was no violation of her Sixth Amendment rights and she is not entitled to automatic reversal.

         Nevertheless, because the Court finds that there was no conflict of interest, it will apply the test articulated in Strickland to analyze Petitioner's ineffective assistance of counsel claim. Strickland v. Washington, 466 U.S. 668 (1984). In her Motion, Petitioner lists several deficiencies that she claims her attorney committed including failure to: raise the issues Petitioner wanted raised, subject the government's case to meaningful adversarial testing, and conduct a defense on her behalf. ECF No. 712 at 4. Petitioner also lists a myriad of other allegations. The Court finds that all of Petitioner's allegations lack merit and do not meet the Strickland standard. Thus, Petitioner's claim must fail.

         To prove a claim of ineffective assistance of counsel, Petitioner must make two showings. Strickland v. Washington, 466 U.S. 668, 687 (1984). First, Petitioner must show that counsel's performance was deficient. Id. In other words, counsel's errors must have been so serious that he or she was not actually functioning as the "counsel" guaranteed by the Sixth Amendment. Id. In order to demonstrate deficient performance, Petitioner must show "that counsel's representation fell below an objective standard of reasonableness" under the prevailing norms of the legal community. Id. at 688. "Judicial scrutiny of counsel's performance must be highly deferential, " and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. That presumption is even greater when counsel's decisions represent strategic, tactical decisions requiring "assessment and balancing of perceived benefits against perceived risks." United States v. Terry, 366 F.3d 312, 317 (4th Cir. 2004). A petitioner bears the burden of rebutting this presumption. Strickland, 466 U.S. at 689.

         Second, Petitioner must show that the deficient performance prejudiced the defense. Id. at 687. In other words, counsel's errors must have been so serious that the petitioner was deprived of a fair trial with a reliable result. Id. To demonstrate prejudice, Petitioner must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The Supreme Court defined a reasonable probability as "a probability sufficient to undermine confidence in the outcome." Id. In short, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691. Further, in the case of a petitioner claiming ineffective assistance of counsel during the plea bargaining process, the second requirement of the Strickland test demands that the petitioner "show that there is a reasonable probability that, but for counsel's ...

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