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Fuller v. United States

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

July 12, 2018

ANTONIO JERROD FULLER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          RAYMOND A. JACKSON UNITED STALES DISTRICT JUDGE.

         Before 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 DENIED.

         I. FACTUAL AND PROCEDURAL HISTORY

         On 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. § 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.

         On 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.

         Petitioner 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.

         Petitioner 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.

         II. STANDARD OF REVIEW AND BURDEN OF PROOF

         A. Section 2255 Generally

         A 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)).

         When a 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 the sentence.

28 U.S.C. § 2255.

         In a 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.").

         B. Section 2255 Hearing Requirement

         When 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).

         Claims 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

         Claims 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." Id.

         The 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.

         However, 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 108.

         To 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).

         Material 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)).

         D. Ineffective Assistance of Counsel

         As a 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.

         Whether 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." Id.

         To 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 694.

III. DISCUSSION

         Petitioner 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.

         A. Prosecutorial Misconduct

         The 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.

         In its 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.

         1. Prosecutorial Misconduct for Late Disclosure of Jencks and Giglio ...


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