United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON UNITED STALES DISTRICT JUDGE.
the Court is Antonio Jerrod Fuller's
("Petitioner") pro se Motion to Vacate,
Set Aside, or Correct his Sentence, pursuant to Title 28,
United States Code, Section 2255 ("§ 2255
Motion"). ECF No. 284. The Government filed a Response
in Opposition to this Motion, ECF No. 293, and Petitioner
filed a Reply to the Response. ECF No. 296.
Having thoroughly reviewed the motions, filings, and records
in this case, the Court finds that no hearing is necessary to
address Petitioner's Motion. For the reasons set forth
below, Petitioner's § 2255 Motion is
FACTUAL AND PROCEDURAL HISTORY
November 12, 2013, a Grand Jury in Eastern District of
Virginia returned a nineteen count Superseding Indictment
against Petitioner. ECF No. 34. Count One charged Petitioner
with Racketeering Conspiracy, in violation of 18 U.S.C. Â§
1962(d). Id. Count Two charged Petitioner with Drug
Conspiracy, in violation of 21 U.S.C. §
846. Id. Counts Three, Five, and
Eleven charged Petitioner with Murder in Aid of Racketeering
Activity, in violation of 18 U.S.C. § 1959(a)(1).
Id. Counts Four, Six, and Twelve charged Petitioner
with Use of Firearm Resulting in Death, in violation of 18
U.S.C. §§ 924(c)(1), 0). and 2. Id. Counts
Seven and Thirteen charged Petitioner with Attempted Murder
in Aid of Racketeering Activity, in violation of 18 U.S.C.
§§ 1959(a)(5) and 2. Id. Counts Eight and
Fourteen charged Petitioner with Use, Carry, Brandish, and
Discharge Firearm in Relation to a Crime of Violence, in
violation of 18 U.S.C. § 924(c)(1). Id. Counts
Nine and Fifteen charged Petitioner with Felon in Possession
of Firearm, in violation of 18 U.S.C. § 922(g)(1).
Id. Petitioner pled not guilty to all of the
aforementioned Counts of the Indictment on December 19, 2013.
ECF No. 45. On July 16, 2014, Petitioner was convicted on
Counts One, Two, Nine, and Eleven through Fifteen. Petitioner
was acquitted on all other Counts. ECF No. 173.
March 18, 2015, Petitioner was sentenced to life on Counts
One and Eleven, to be served concurrently, with five years of
supervised release, to run concurrently. ECF No. 234. On
Count Two, Petitioner was sentenced to 480 months, to be
served concurrently with Count One, and five years of
supervised release, to run concurrently with Count One.
Id. On Counts Nine, Thirteen, and Fifteen,
Petitioner was sentenced to 120 months, to be served
concurrently with Count One, and three years of supervised
release, to run concurrently with Count One. Id. On
Count Twelve, Petitioner was sentenced to 120 months, to be
served consecutively to Count One, and five years of
supervised release, to run concurrently with Count One.
Id. On Count Fourteen, Petitioner was sentenced to
120 months, to be served consecutively to Count Twelve, and
five years of supervised release, to run concurrently with
Count One. Id.
filed a Notice of Appeal on March 27, 2015, challenging this
Court's denial of his motions for continuance during
trial and claiming that his trial attorneys
("Counsel") were constitutionally ineffective. EFC
No. 240. On November 9, 2016, the United States Court of
Appeals for the Fourth Circuit ("Fourth Circuit")
entered a Final Judgment affirming this Court's decision
to deny the motions for continuance and stating that the
record did not conclusively demonstrate that Counsel were
constitutionally ineffective. ECF No. 280.
filed the instant Motion on November 13, 2017. ECF No. 284.
The Court ordered the United States Attorney to respond to
Petitioner's § 2255 Petition. ECF No. 286. The
Government filed a Response in Opposition to Petitioner's
Motion on March 7, 2018, ECF No. 293, and Petitioner filed a
Reply on April 16, 2018. ECF No. 296.
STANDARD OF REVIEW AND BURDEN OF PROOF
Section 2255 Generally
petitioner may move the court to vacate, set aside, or
correct his sentence, pursuant to 28 U.S.C. § 2255, in
four instances: (1) the sentence was imposed in violation of
the Constitution or laws of the United States; (2) the
district court lacked jurisdiction to impose the sentence;
(3) the length of the sentence is in excess of the maximum
authorized by law; and (4) the sentence is otherwise subject
to collateral attack. See 28 U.S.C. § 2255
(1948). "Relief under 28 U.S.C. § 2255 is reserved
for transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised on direct
appeal and would, if condoned, result in a complete
miscarriage of justice." Jones v. United
States, No. 4:09CV76, 2010 WL 451320, at *4 (E.D. Va.
Feb. 8, 2010) (quoting United States v. Vaughn, 955
F.2d 367, 368 (5th Cir. 1992)).
petitioner in federal custody wishes to collaterally attack
his sentence or conviction, the appropriate motion is a
§ 2255 motion. United States v. Winestock, 340
F.3d 200, 203 (4th Cir. 2003). Section 2255 of Title 28 of
the United States Code governs post-conviction relief for
federal prisoners. It provides in pertinent part:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground 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 sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255.
proceeding to vacate a judgment of conviction, the petitioner
bears the burden of proving his or her claim by a
preponderance of the evidence. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958). Additionally,
pro se filers are entitled to more liberal
construction of their pleadings. Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978), cert, denied,
439 U.S. 970 (1978) (providing that a pro se
petitioner is entitled to have his petition construed
liberally and is held to less stringent standards than an
attorney drafting such a complaint). Furthermore, if the
motion is brought before the judge that presided over the
conviction, the judge may rely upon recollections of previous
events. Blackledge v. Allison, 431 U.S. 63, 74 n. 4
(1977); Carvell v. United States, 173 F.2d 348,
348-49 (4th Cir. 1949) (stating it is highly desirable that
§ 2255 motions "be passed on by the judge who is
familiar with the facts and circumstances surrounding the
trial, and is consequently not likely to be misled by false
allegations as to what occurred.").
Section 2255 Hearing Requirement
deciding a § 2255 motion, a court must promptly grant a
hearing "unless 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). Motions under
§ 2255 "will not be allowed to do service for an
appeal." Sunal v. Large, 332 U.S. 174, 178
(1947). For this reason, 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). Issues
already decided on direct appeal may only be raised in a
§ 2255 motion if there has been a "material
change" in the law "between the direct appeal and
the § 2255 motion." United States v.
Masters, No. 91-6100, 1992 WL 232466, at *2 (4th Cir.
1992); see also United States v. Roane, 378 F.3d
382, 396, n. 7 (4th Cir. 2004). Further, issues that might
have been, but were not, raised on direct appeal may not be
raised subsequently in a § 2255 motion. Sanders v.
United States, 230 F.2d 127 (4th Cir. 1956), cert,
denied, 351 U.S. 955 (1956).
of prosecutorial misconduct should generally be raised on
direct appeal. Reese v. United States, No. 1:15CR32,
2017 WL 2623770, at *4 (E.D. Va. June 16, 2017). These claims
are procedurally defaulted if they could have been, but were
not, raised on direct appeal. Hernandez Portillo v.
United States, No. 1:07CR81, 2014 WL 3615815, at * 16
(E.D. Va. Jul. 17, 2014). However, prosecutorial misconduct
claims alleging Brady violations are properly raised
in a § 2255 motion. Id. Likewise, ineffective
assistance of counsel claims should generally be raised in a
collateral motion instead of on direct appeal. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
C. Prosecutorial Misconduct
of prosecutorial misconduct are procedurally defaulted if
they could have been, but were not, raised on direct appeal.
Hernandez Portillo, No. 1:07CR81 at *44.
Prosecutorial misconduct claims that were not raised on
direct appeal may only be raised in a § 2255 motion if a
petitioner can demonstrate actual innocence by clear and
convincing evidence or satisfy a two-pronged test. United
States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir.
1992). The test requires a petitioner to show (1) "cause
for procedural default" excusing failure to raise the
claim on direct appeal, and (2) "actual prejudice
resulting from the errors of which he complains."
cause of prong one "must turn on something external to
the defense, such as the novelty of the claim or a denial of
effective assistance of counsel." Id. at 493.
To show prejudice as required by prong two, a petitioner must
do more than suggest "a possibility of
prejudice"; he must show that the alleged errors
"worked to his actual and substantial
disadvantage." United States v. Frady, 456 U.S.
152, 170 (1982). See also Broyles v. United States,
No. 2:09CR3, 2013 WL 6885128, at *2 (E.D. Va. Dec. 30, 2013)
(quoting Frady to define "prejudice" in
the Mikalajunas inquiry). A petitioner must
establish both prongs to raise prosecutorial misconduct in a
§ 2255 motion if that claim was not raised on direct
appeal. Mikalajunas, 186 F.3d at 493.
claims of prosecutorial misconduct alleging Brady
violations are properly raised in a § 2255 motion.
Hernandez Portillo, No. 1:07CR81 at *44. Under
Brady v. Maryland, prosecutors have an affirmative
duty to disclose evidence that is both favorable to the
defendant and "material either to guilt or
punishment." 373 U.S. 83, 87 (1963). Suppressing such
evidence is a violation of the defendant's Fifth
Amendment right to Due Process, "irrespective of the
good or bad faith of the prosecution." Id.
Evidence is "material" under Brady
"only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different. A 'reasonable
probability' is a probability sufficient to undermine
confidence in the outcome." United States v.
Bagley, 473 U.S. 667, 682 (1985). In other words,
evidence is material "if it might have affected the
outcome of the trial." United States v. Agurs,
421 U.S. 97, 104 (1976). Material evidence that falls under
Brady includes both exculpatory evidence and
impeachment evidence, which is often called
"Giglio material." Bagley, 473
U.S. at 676 (citing Giglio v. United States, 405
U.S. 150, 154 (1972)). The prosecution has an obligation to
disclose Brady and Giglio material whether
or not the defense requests it. Agurs, 427 U.S. at
prove a Brady or Giglio violation, a
defendant must "show that the undisclosed evidence was
(1) favorable to him either because it is exculpatory, or
because it is impeaching; (2) material to the defense,
i.e., 'prejudice must have ensued'; and (3)
that the prosecution had materials and failed to disclose
them." United States v. Wilson, 624 F.3d 640,
661 (4th Cir. 2010). There is no Brady violation
where the exculpatory information is not only available to
the defendant but also lies in a source where a reasonable
defendant would have looked. United States v.
Wilson, 901 F.2d 378, 381 (4th Cir. 1990).
that must be disclosed pursuant to the Jencks Act may overlap
with Brady and Giglio material. The Jencks
Act provides that statements made by government witnesses may
be withheld until after the witnesses have testified on
direct examination. United States v. Beckford, 962
F.Supp. 780, 789 (E.D. Va. 1997). The Act provides that after
direct examination, the government must produce "any
statement ... of the witness in the possession of the United
States which relates to the subject matter as to which the
witness has testified" if the defendant so moves. 18
U.S.C. § 3500(b) (1970). This is intended to allow the
defense to obtain statements for impeachment purposes.
Id. Jencks material that constitutes exculpatory or
impeachment evidence overlaps with Brady material.
Beckford, 962 F.Supp. at 789. The Eastern District
of Virginia has adopted a "balancing approach" to
determine on a case-by-case basis whether this information
must be disclosed by the earlier Brady deadline or
may be withheld until after direct examination, as allowed by
the Jencks Act. Id. at 792. To determine the proper
time for disclosure, courts in the Eastern District of
Virginia must weigh the danger of early disclosures against
the disadvantage to the defendant of later disclosures; in
other words, "the due process requirements of
Brady must be met early enough to allow the defense
to make effective use of the exculpatory statements at trial,
while at the same time the dangers that the Jencks Act seeks
to control must be minimized." Id. (quoting
United States v. Shifflett, 798 F.Supp. 354, 356-57
(W.D. Va. 1992)).
Ineffective Assistance of Counsel
general matter, a petitioner must satisfy two factors to
establish ineffective assistance of counsel: "(1) that
[counsel's performance fell below an objective standard
of reasonableness, and (2) that [petitioner] was prejudiced
by the deficiency because it created a reasonable probability
that but for counsel's errors, the result of the
proceeding would have been different." United States
v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994) (citing
Smith v. Smith, 931 F.2d 242, 244 (4th Cir. 1991));
see also Strickland v. Washington, 466 U.S. 668, 693
(1984). "A reasonable probability is one that is
sufficient to undermine confidence in the outcome."
Hoyle, 33F.3d at 418.
before, during, or after trial, when the Sixth Amendment
applies, the formulation of the standard is the same:
reasonable competence in representing the accused.
Strickland, 466 U.S. at 688-89. In applying and
defining this standard, substantial deference must be
accorded to counsel's judgment. Id. at 689. If
petitioner makes an insufficient showing on one prong, there
is no reason for a court deciding an ineffective assistance
claim to address both components of the inquiry. Id.
at 697. A court is not required to begin with an analysis of
the first prong of Strickland because "a court
need not approach the inquiry in the same order," and
"need not determine whether counsel's performance
was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies."
demonstrate deficient representation, a petitioner must show
"that counsel's representation fell below an
objective standard of reasonableness." Id. at
688. A petitioner must overcome a strong presumption that
counsel's performance falls within the wide range of
reasonable professional assistance under the circumstances.
Id. at 689. Also, a petitioner bears the burden of
proving prejudice. Fields v. Att'y Gen. of the State
o/Md., 956 F.2d 1290, 1297 (4th Cir. 1992). To show
prejudice, a petitioner must prove 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
bases his § 2255 Motion on two grounds: prosecutorial
misconduct and ineffective assistance of counsel. Petitioner
makes several claims on each ground. The Court will address
each claim in turn.
first ground of Petitioner's Motion is prosecutorial
misconduct. Petitioner's first claim is that the
Government violated its obligations under Brady v.
Maryland, 373 U.S. 83 (1963), Giglio v. United
States, 405 U.S. 150 (1972), and the Jencks Act, 18
U.S.C. § 3500 (1970), by (1) making late pre-trial
disclosures of Jencks and Giglio material; (2)
making post-trial disclosures of Jencks and Giglio
material; (3) failing to disclose the Grand Jury testimony of
Calvin Bailey; (4) coaching witnesses; and (5) failing to
disclose other exculpatory evidence.
Response, the Government alleges that Petitioner makes two
additional claims: (1) that the Government failed to disclose
Aaron Sumler's dying declaration to Kenneth Matthews and
(2) that this Court abused its discretion by denying the
defense counsel's motions for continuance. ECF No. 293 at
36-37. However, Petitioner raised these claims on appeal and
does not renew them in the instant Motion. Br. of Appellant
at 9, 19.
Prosecutorial Misconduct for Late Disclosure of Jencks and