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Good v. United States

United States District Court, E.D. Virginia, Norfolk Division

June 13, 2018

FRANK WAYNE GOOD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          MARK S. DAVIS UNITED STATES DISTRICT JUDGE

         This matter is before the Court on a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, filed by Petitioner Frank Wayne Good ("Petitioner" or "Good"). Petitioner's § 2255 motion contains numerous claims alleging ineffective assistance of counsel. For the reasons discussed below, Petitioner's habeas petition is DENIED with the exception of Petitioner's claim that counsel was ineffective for failing to file a notice of appeal as directed, which is TAKEN UNDER ADVISEMENT pending an evidentiary hearing.

         I. FACTUAL AND PROCEDURAL HISTORY

         On February 5, 2016, Petitioner was charged with the following eight counts of a twenty-seven count indictment: Conspiracy to Distribute and Possess with Intent to Distribute Methamphetamine in violation of 21 U.S.C. 846 (Count 1); Distribution of Methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Counts 2 and 3); Maintaining Drug-Involved Premises in violation of 21 U.S.C. § 856(a)(1) (Counts 4 and 5); and Using the United States Mail to Cause, Commit and Facilitate a Felony Violation of the Controlled Substances Act in violation of 21 U.S.C. § 843(b) (Counts 6 through 8). See Ind., ECF No. 1.

         On March 14, 2016, Petitioner was appointed counsel. See Initial Appearance Minutes, ECF No. 8. On May 25, 2016, the Government filed an Information to Establish Prior Conviction in accordance with 21 U.S.C. § 851, which noted one of several of Petitioner's prior felony drug offenses. ECF No. 68. On June 3, 2016, Petitioner pled guilty pursuant to a written plea agreement to Count One of the indictment. ECF No. 77. The Court accepted Petitioner's guilty plea and continued the matter for sentencing. Id.

         In the presentence investigation report ("PSR") prepared on August 17, 2016, the probation officer calculated Petitioner's Advisory Guidelines range to be 360 months to life based upon an offense level of 41 and a criminal history category of IV. See PSR ¶¶ 22-33, 100-101, ECF No. 102. On August 30, 2016, Petitioner raised the following objections to the PSR: (1) that the drug weight attributed to him that resulted in his Base Offense Level of 36 was inaccurate; and (2) that he should not be assessed the two-level enhancement for possession of a dangerous weapon. See PSR 31-32, ECF No. 114. On September 14, 2016, Petitioner filed a position paper withdrawing his objections and concurring with the recommended guideline range. See Def.'s Pos. Paper 1, ECF No. 120. In his position paper, Petitioner argued for a below-Guidelines sentence "close to the 240 month minimum sentence." Id. On that same day, the Government filed its position on sentencing recommending a sentence within the undisputed Guidelines range of 360 months to life imprisonment. ECF No. 121.

         At Petitioner's sentencing hearing on September 21, 2016, both parties agreed that the Guidelines range and statutory-imprisonment range were properly calculated. Sen. Hr'g Tr. 7:5-10, ECF No. 170. The Court ultimately sentenced Petitioner to a below-Guidelines sentence of 300 months imprisonment, followed by a ten-year term of supervised release. See Judgment 2-3, ECF No. 136.

         On June 8, 2017, Petitioner timely filed the instant § 2255 motion. ECF No. 146. Therein, Petitioner requests that his conviction and sentence be vacated because Petitioner's counsel provided ineffective assistance for failing to (1) conduct an adequate and independent pretrial investigation; (2) negotiate a more favorable plea agreement; (3) adequately inform him of the likely outcome of pleading guilty; (4) review, discuss, and explain the PSR to Petitioner prior to his sentencing; (5) file substantive objections to the PSR; and (6) file an appeal. See Mem. Law Supp. § 2255 Mot. 15-27, ECF No. 147.

         On October 27, 2017, the Government replied in opposition. ECF No. 159. On November 27, 2017, Petitioner filed his reply-brief. ECF No. 165. Having been fully briefed, Petitioner's pending motion is ripe for review.

         II. STANDARD OF REVIEW

         A federal prisoner, in custody, may collaterally attack his sentence or conviction by moving the district court "to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). To obtain such relief, a petitioner must prove by a preponderance of the evidence that his sentence or conviction was "imposed in violation of the Constitution or laws of the United States, " that the district court "was without jurisdiction to impose such sentence, " that the sentence exceeds "the maximum authorized by law, " or that the sentence or conviction is "otherwise subject to collateral attack." Id.; see Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) . Because a § 2255 motion "is ordinarily presented to the judge who presided at the original conviction and sentencing . . . the judge's recollection of the events at issue" may inform the resolution of the motion. Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977).

         A § 2255 motion is, in essence, a statutory federal habeas corpus action that enables a petitioner to collaterally attack his sentence or conviction through the filing of a new proceeding, as contrasted with a direct appeal. United States v. Hadden, 475 F.3d 652, 663 (4th Cir. 2007) . The existence of the right to pursue a collateral attack does not displace a direct appeal as the "usual and customary method of correcting trial errors." United States v. Allgood, 48 F.Supp.2d 554, 558 (E.D. Va. 1999).

         Although a petitioner advancing new claims asserted for the first time in a § 2255 motion must generally "clear a significantly higher hurdle than would exist on direct appeal, " United States v. Frady, 456 U.S. 152, 166 (1981), a freestanding claim of ineffective assistance of counsel is properly asserted for the first time in a § 2255 motion, see United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (w[I]t is well settled that a claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance.'" (quoting United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992))). Such rule exists because the Federal Rules Governing § 2255 proceedings permit expansion of the record, which is generally unavailable on direct appeal. United States v. Baptiste, 596 F.3d 214, 216 n.l (4th Cir. 2010) (citing Massaro v. United States, 538 U.S. 500, 504-06 (2003)).

         The Sixth Amendment to the Constitution of the United States provides that "the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The United States Supreme Court has interpreted the right to counsel as providing a defendant "'the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686 (1984) (emphasis added) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To obtain relief based on an allegation of ineffective assistance, a petitioner must establish both: (1) that counsel's performance was so deficient that it fell below an objective standard of reasonableness; and (2) that counsel's inadequate performance caused the petitioner prejudice. Id. at 687-88. "Vague and conclusory allegations contained in a § 2255 petition" are insufficient to carry a petitioner's burden under Strickland, and such allegations may therefore "be disposed of without further investigation by the District Court." United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (internal quotation marks and citation omitted).

         Satisfying the first prong of Strickland requires a petitioner to establish that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Reviewing courts strongly presume that counsel exercised reasonable professional judgment, and only in "relatively rare situations" will a § 2255 motion establish that, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.'" Tice v. Johnson, 647 F.3d 87, 102 (4th Cir. 2011) (quoting Strickland, 466 U.S. at 690) . As it is all too easy to challenge an act, omission, or strategy, once it has proven unsuccessful, "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. A petitioner's showing of deficient performance must therefore go beyond establishing that counsel's performance was below average, because "effective representation is not synonymous with errorless representation." Springer v. Collins, 586 F.2d 329, 332 (4th Cir. 1978); see Strickland, 466 U.S. at 687. According to the Fourth Circuit, the "basic lesson" of Strickland is not just deference but high deference, and attorneys are permitted to "be selective and strategic without risking an ineffective assistance of counsel claim." United States v. Mason, 774 F.3d 824, 830 (4th Cir. 2014).

         The second prong of Strickland requires a petitioner to "affirmatively prove prejudice, " which requires a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 693-94. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. If a petitioner fails to prove either of the two prongs of the Strickland test, the court need not evaluate the other prong.

         III. DISCUSSION

         Petitioner's § 2255 motion advances six claims of ineffective assistance of counsel, including that Petitioner's counsel: (1) failed to conduct an adequate and independent pretrial investigation; (2) failed to negotiate a more favorable plea agreement; (3) failed to adequately inform him of the likely outcome of pleading guilty; (4) failed to review, discuss, and explain the PSR to Petitioner prior to his sentencing; (5) failed to file substantive objections to the ...


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