United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge.
Nguyen ("Nguyen" or "movant") has filed a
prose Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody
("Motion to Vacate") [Dkt. No. 214], in which he
raises four claims of ineffective assistance of his counsel,
Christopher Amolsch ("Amolsch"). Specifically, he
alleges that Amolsch failed to investigate Nguyen's
criminal conduct in order to better negotiate a plea
agreement; assured him that the maximum sentence he would
receive under his plea agreement was 60 months, although he
received a sentence of 87 months; failed to object to this
sentence for being in excess of the plea agreement and
disparate from the sentences of his co-defendants; and did
not file a notice of appeal as requested. For the reasons
that follow, the Motion to Vacate will be dismissed.
April 14, 2016, a grand jury returned a superseding
indictment charging Nguyen with 19 counts, including
conspiracy to distribute 500 grams or more of cocaine in
violation of 21 U.S.C. § 841 (Count 1), as well as
distribution of crack cocaine (Count 2), distribution of
"Molly" (Counts 3-12, 15-19), and distribution of
cocaine (Counts 13-14). Superseding Indictment [Dkt. No. 98].
On June 28, 2016, Nguyen appeared with Amolsch and pleaded
guilty under a written plea agreement to only Count 1, an
offense which carried a mandatory minimum sentence of five
years to a maximum of 40 years of incarceration Dkt. No. 161.
In exchange for that plea, the remaining counts were
dismissed. Id. As part of the written plea
agreement, Nguyen also signed a statement of facts under the
penalty of perjury in which he admitted that he conspired to
unlawfully, knowingly, and intentionally distribute 500 grams
or more of cocaine in the northern Virginia area. Stmt. Facts
[Dkt. No. 163] ¶ 1 He also admitted supervising other
conspirators-including co-defendants Phong Thanh Nguyen, Son
Dang Nguyen, and Khahn Linh Dong-in the distribution of
cocaine. Id. ¶ 4.
was sentenced on October 7, 2016, to 87 months of
incarceration, with credit for time served followed by five
years of supervised release. Dkt. No. 202. In addition, the
Court imposed a $100.00 special assessment. Id.
Although no direct appeal was filed, Nguyen timely filed his
Motion to Vacate.
Standard of Review
motion to vacate under 28 U.S.C. § 2255 provides for
collateral attack on a conviction or sentence when the
conviction or sentence was imposed in violation of the United
States Constitution or laws, when the court lacked
jurisdiction to impose the sentence, when the sentence was in
excess of the maximum authorized by law, or when the
conviction or sentence is otherwise subject to a collateral
attack. See 28 U.S.C. § 2255(a). To prevail on a §
2255 motion, a movant bears the burden of proving his grounds
for collateral relief by a preponderance of the evidence.
See Jacobs v. United States, 350 F.2d 571, 574 (4th
under § 2255 is designed to correct for fundamental
constitutional, jurisdictional, or other errors, and it is
therefore reserved for situations in which failing to grant
relief would be "inconsistent with the rudimentary
demands of fair procedure or constitute[ ] a complete
miscarriage of justice." United States v. Vonn,
535 U.S. 55, 64 (2002) (quoting United States v.
Timmreck, 441 U.S. 780, 783 (1979)). A § 2255
motion "may not do service for an appeal," and
claims that have been waived are therefore procedurally
defaulted unless the movant can show cause and actual
prejudice. United States v. Frady, 456 U.S. 152,
165-67(1982). There is an exception to this rule when a
defendant brings a claim of constitutionally ineffective
assistance of counsel. See United States v.
Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994). Under
§ 2255(b), a movant is to be granted an evidentiary
hearing on his motion "[u]nless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief."
Ineffective Assistance of Counsel
is not challenging the voluntariness of his guilty plea, nor
is he claiming to be actually innocent of the conspiracy. In
his own words, he admits "it should be pointed out that
[movant] is not challenging whether he was or wasn't
guilty in [sic] the charged offense. [Movant] is challenging
the long term of time gave to him [sic] by the sentencing
judge, due to the ineffectiveness of his lawyer."
Pet'r's Reply Gov's Resp. Opp'n
("Reply") [Dkt. No. 224] at 13. To establish an
ineffective assistance of counsel claim, Nguyen must show
both that (1) "counsel's performance was
deficient" and that (2) "the deficient performance
prejudiced the defense." Strickland v.
Washington, 466 U.S. 668, 687 (1984). Deficient
performance occurs when "counsel's representation
fell below an objective standard of reasonableness."
Id. at 688. A movant can show prejudice when there
is "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 694. A mere
showing that "the errors had some conceivable effect on
the outcome of the proceeding" is not enough; a
reasonable probability requires that the errors are
"sufficient to undermine confidence in the
outcome." Id. at 693-94.
movant pleads guilty, as Nguyen did, he must meet a
heightened burden of proving prejudice by showing that
"there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial." Hill v.
Lockhart, 474 U.S. 52, 57-59 (1985): see also United
States v. Dvess, 478 F.3d 224, 237 (4th Cir. 2007). Such
movants must also "convince the [C]ourt that a decision
to reject the plea bargain would have been rational under the
circumstances." Padilla v. Kentucky, 559 U.S.
356, 372 (2010). In making this showing, Nguyen's
"subjective preferences, therefore, are not dispositive;
what matters is whether proceeding to trial would have been
objectively reasonable in light of all of the facts."
United States v. Fueit, 703 F.3d 248, 260 (4th Cir.
the plea colloquy, for which a court certified Vietnamese
language interpreter was present,  Nguyen affirmed that he had
enough time to review the plea agreement and to ask his
lawyer all the questions he had about the agreement.
THE COURT: Now, were you able to read the plea agreement for
THE DEFENDANT: Yes.
THE COURT: All right. And did you read it entirely? Did you
read every word of ...