United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
S. DAVIS UNITED STATES DISTRICT JUDGE
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
FACTUAL AND PROCEDURAL HISTORY
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.
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
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.
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.
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.
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.
STANDARD OF REVIEW
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).
§ 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).
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)).
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
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).
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
§ 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