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Durham v. United States

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

March 30, 2018

QUANTAVIUS DURHAM, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM ORDER

          ROBERT G. DOUMAR, UNITED STATES DISTRICT JUDGE.

         This 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 Four.

         I. PROCEDURAL HISTORY

         On 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.

         On May 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.

         II. § 2255 MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

         A. Standard of Review

         Section 2255 allows a federal prisoner to move to "vacate, set aside or correct" a federal sentence upon the following grounds: [1] that "the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such a sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] 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, 343-44 (1974).

         When 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 Cir. 1995).

         1. Procedural Default

         A § 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).

         When a 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).

         The 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).

         2. Reviewing Claims of Ineffective ...


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