United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge.
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
FACTUAL AND PROCEDURAL HISTORY
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
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.
STANDARD OF REVIEW
Section 2255 Generally
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
28 U.S.C. § 2255.
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).
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).
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.
Ineffective Assistance Due to a Conflict of Interest
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
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
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.
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
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.
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 ...