United States District Court, E.D. Virginia, Newport News Division
G. DOUMAR, UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon Quantavius Durham's
("Petitioner") Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody ("§ 2255 Motion"). ECF No.
149. For the reasons set forth herein, Petitioner's
§ 2255 Motion is denied as to all claims except Ground
November 17, 2015, a federal grand jury sitting in Newport
News, Virginia, named Petitioner and three others in a
four-count criminal indictment. ECF No. 4. Petitioner was
charged with all four counts, including Conspiracy to Commit
Murder in Aid of Racketeering Activity, in violation of 18
U.S.C. § 1959(a)(5) (Count 1); Possession of a Firearm
in Furtherance of a Crime of Violence, in violation of 18
U.S.C. § 924(c)(1)(A)(i) (Count 2); Attempted Murder in
Aid of Racketeering Activity, in violation of 18 U.S.C.
§§ 1959(a)(5) and 2 (Count 3); and Discharge of a
Firearm during a Crime of Violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii) (Count 4). Id. On March 14,
2016, Petitioner appeared before the Court and pled guilty to
Counts 3 and 4 of the criminal indictment pursuant to a
written plea agreement with the United States
("Government"). ECF No. 82. On July 18, 2016, the
Court sentenced Petitioner to a total term of imprisonment of
210 months, which includes 90 months on Count 3 and 120
months on Count 4, to be served consecutively. ECF No. 130 at
2. Judgment was entered on July 19, 2016. ECF No. 130.
Petitioner did not appeal.
11, 2017, Petitioner timely filed the instant § 2255
Motion and a supporting memorandum ("Pet. Mem."),
ECF Nos. 149 and 150, which were docketed by the Clerk of
this Court on May 19, 2017. See 18 U.S.C. § 2255(f)(1);
Houston v. Lack. 487 U.S. 266, 276 (1988)
(establishing prison mailbox rule). Petitioner's motion
is now before the Court.
§ 2255 MOTION TO VACATE, SET ASIDE OR CORRECT
Standard of Review
2255 allows a federal prisoner to move to "vacate, set
aside or correct" a federal sentence upon the following
grounds:  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 a sentence,
or  that the sentence was in excess of the maximum
authorized by law, or  is otherwise subject to collateral
attack." 28 U.S.C. § 2255. The Supreme Court has
held that § 2255 is the appropriate vehicle by which a
federal prisoner may challenge both his conviction and
sentence. Davis v. United States, 417 U.S. 333,
filing a § 2255 petition, the petitioner bears the
burden of proving his grounds for relief by a preponderance
of the evidence. Miller v. United States, 261 F.2d
546, 547 (4th Cir. 1958)). However, a pro se petitioner is
entitled to have his petition and issues asserted therein
construed liberally. Gordon. 574 F.2d at 1151. Upon
reviewing a § 2255 motion, the district court may, in
its discretion, deny the motion without a hearing. Raines
v. United States, 423 F.2d 526, 529-31 (4th Cir. 1970).
But it may only do so if "the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief." 28 U.S.C. § 2255(b). For
instance, if the motion can be resolved exclusively on issues
of law, and no questions of fact exist, then summary
dismissal is appropriate without an evidentiary hearing. See
Green v. United States. 65 F.3d 546, 548-49 (6th
§ 2255 motion "may not do service for an
appeal." United States v. Frady, 456 U.S. 152,
165 (1982). 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). And, generally, any claim that
could have been raised at trial or on direct appeal, but was
not, is barred as procedurally defaulted. Bousley v.
United States, 523 U.S. 614, 622 (1998). However, the
doctrine of procedural default excludes claims of ineffective
assistance of counsel, Massaro v. United States, 538
U.S. 500, 504 (2003), as such claims are generally not
cognizable on direct appeal unless the record on appeal
conclusively shows ineffective assistance, United States
v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)
(internal citation omitted).
claim is procedurally defaulted, a § 2255 movant is
completely barred from seeking relief on that claim unless he
can show that: (1) there would be a "fundamental
miscarriage of justice" if relief is denied, such as
being actually innocent of the crime, Murray v.
Carrier, 477 U.S. 478, 495-96 (1986), or (2) that there
is "cause" sufficient to excuse the default and
"actual prejudice" resulting from the error,
Frady, 456 U.S. at 169 (citations omitted).
cause and prejudice standard is a "significantly higher
hurdle than would exist on direct appeal."
Frady, 456 U.S. at 166. "Cause" for a
procedural default must turn on something external to the
claim or defense itself, Murray, 477 U.S. at 488,
which, courts have consistently held, includes ineffective
assistance of counsel. United States v.
Breckenridge, 93 F.3d 132, 134 n.l (4th Cir. 1996)
(collecting cases): see also Smith v. Dixon, 14 F.3d
956, 973 (4th Cir. 1994) (noting in the context of a §
2254 motion that "an attorney's ineffectiveness may
constitute cause for excusing a procedural default" if
the petitioner can show that he had a constitutional right to
effective assistance of counsel and that such assistance was
constitutionally ineffective). To show "actual
prejudice, " a habeas petitioner must demonstrate that
the claimed error worked to "his actual and substantial
disadvantage." Satcher v. Pruitt, 126 F.3d 561,
572 (4th Cir. 1997) (internal citation omitted); see also
Fry v. Pliler, 551 U.S. 112, 116 (2007) (defining
"actual prejudice" as a "substantial and
injurious effect or influence in determining the jury's
verdict") (citation omitted).
Reviewing Claims of Ineffective ...