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United States v. Faxon

United States District Court, W.D. Virginia, Abingdon Division

May 21, 2018


          Erin M. Kulpa, Assistant United States Attorney, Harrisonburg, Virginia, for United States; Richard William Faxon, Pro Se Defendant.



         The defendant, Richard William Faxon, proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, based on claims of ineffective assistance of counsel. The government filed a Motion to Dismiss. Faxon filed a Motion to Amend his § 2255 petition and the government responded in opposition. The motions are now ripe for disposition. After reviewing the record, I will grant the United States' Motion to Dismiss.


         On July 28, 2015, pursuant to a written plea agreement, Faxon pleaded guilty to receiving and possessing stolen firearms, in violation of 18 U.S.C. §§ 2 & 922(j), and witness tampering, in violation of 18 U.S.C. § 1512(b)(1). The plea agreement provided that U.S. Sentencing Guidelines Manual (“USSG”) § 2K2.1 applied to the firearm charge, with a base offense level of 20, and included a 4- level enhancement for the number of firearms involved and a 2-level enhancement because the firearms were stolen. Plea Agreement 3, ECF No. 168.

         A change of plea hearing was held on July 28, 2015. Faxon stated, under oath, that he had had an adequate opportunity to discuss the indictment and the case with his attorney, and also to read and discuss the Plea Agreement before singing it. Plea Hr'g Tr. 20-22 ECF No. 268. He stated the he had read the entire Plea Agreement and that he was satisfied with his attorney's representation. Id. at 22. The court informed Faxon that he faced a maximum of 10 years imprisonment on the firearm charge and a maximum of 20 years imprisonment on the witness tampering charge. Id. at 26. The government reviewed the terms of the Plea Agreement, including the Sentencing Guidelines applicable to Faxon. Id. at 25-29. Faxon stated that he understood that he was giving up his right to appeal and to collaterally attack his sentence, insofar as legally allowed. Id. at 31. Faxon agreed that he was pleading guilty because he was, in fact, guilty of the charged conduct. Id. at 41-42, 48.

         I sentenced Faxon to 120 months incarceration on each count, to be served concurrently. Faxon, through counsel, filed a Notice of Appeal. However, he moved to voluntarily withdraw the appeal, which was granted.

         In this § 2255 motion, Faxon alleges that counsel provided ineffective assistance by failing to: (1) inform him that he could “plea demurrer;” (2) challenge the court's subject matter jurisdiction and inform him that he may appear by “special visitation;” (3) investigate the witness tampering charge; (4) object to the court's failure to inform him of the minimum and maximum sentences that he faced; (5) challenge the firearm enhancement; (6) explain that the appeal waiver in his Plea Agreement was unconstitutional and that he could appeal, even with the waiver; (7) object to the 120-month sentence imposed; and (8) file a brief on appeal pursuant to Anders v. California, 386 U.S. 738 (1967). In addition, Faxon filed a Motion to Amend his § 2255, requesting access to discovery.


         To state a viable claim for relief under § 2255, a defendant must prove: (1) that his sentence was “imposed in violation of the Constitution or laws of the United States”; (2) that “the court was without jurisdiction to impose such sentence”; or (3) that “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Faxon bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         A. Plea Demurer.

         Faxon first argues that his counsel erred by failing to inform him that he could “plea demurrer” to the charges against him. “What the demurring defendant seeks is a ruling that as a matter of law the State's evidence is insufficient to establish his factual guilt.” Smalis v. Pennsylvania, 476 U.S. 140, 144 (1986). While a defendant may be able to demurrer in state court, no such procedure exists. Because Faxon could not enter a demurrer to the charges against him, his counsel was not ineffective for failing to explain such a plea. See Sharpe v. Bell, 593 F.3d 372, 383 (4th Cir. 2010) (concluding that counsel's failure to raise a futile argument did not constitute ineffective assistance of counsel); Strickland v. Washington, 466 U.S. 668, 687 (1984) (noting that in order to succeed on an ineffective assistance of counsel claim, a defendant must establish both deficient performance and prejudice).

         B. Subject Matter Jurisdiction and Special Visitation.

         Next, Faxon argues that his counsel erred by failing to argue that the court lacked subject-matter jurisdiction to adjudicate his firearm claim. Faxon claims that only the Commonwealth of Virginia, which originally charged him for the criminal conduct at issue in this case, but later dropped the charges, had jurisdiction. In a related claim, Faxon argues that his counsel erred by “failing to inform him that he may also plea[d] by ‘appearing by special visitation, '” which Faxon argues would have established that the ...

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