United States District Court, E.D. Virginia, Norfolk Division
EVRICK P. SPEIGHT Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge.
the Court is Evrick Speight's ("Petitioner")
pro se Motion to Vacate, Set Aside, or Correct a Sentence by
a Person in Federal custody pursuant to Title 28, United
States Code, Section 2255 ("§ 2255 Motion").
Having reviewed the motions and filings, the Court finds that
a hearing is not necessary to address Petitioner's
motion. For the reasons set forth below, Petitioner's
§ 2255 Motion is DENIED.
FACTUAL AND PROCEDURAL HISTORY
background, this case involved various firearm charges in
connection to narcotics distribution and trafficking.
See ECF No. 3; ECF No. 18¶ 1. On November 29,
2016, Evrick Speight possessed with intent to distribute
approximately 27.85 grams of a rock-like substance later
identified by the Virginia Department of Forensic Science as
containing a detectible amount of cocaine. ECF No. 18 ¶
¶ 1-2. Speight sold this mixture to confidential sources
working in conjunction with federal and local law
enforcement, while possessing with intent to sell a New
Frontier Armory LLC 5.56 caliber rifle, Model LW-15.
Id. at ¶ 3; ECF No. 36 at 3 (Speight claims
that he "only brought to the meets what was being
jury indicted Petitioner on February 22, 2017. Id.
The indictment charged Speight with six counts of a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1); two counts of distributing cocaine in violation of
21 U.S.C. § 841(a)(1), (b)(1)(c); and one count of
using, carrying, and possessing a firearm in relation to and
in furtherance of a drug-trafficking crime, in violation of
18 U.S.C. § 924(c). Id. Petitioner was arrested
and had his initial appearance before a Magistrate Judge on
March 6, 2017. ECG No. 8. In the proceedings for an
arraignment and detention hearing, Speight was formally
arraigned, entered a plea of not guilty, did not waive a
preliminary hearing, and demanded a trial by jury. ECF No.
13. As his counsel, Speight was appointed Shannon Hadeed,
subsequently pled guilty to Count Eight, Intent to Distribute
a Mixture and Substance Containing a Detectable Amount of
Cocaine in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C), and Count Nine, Possession of Firearms in
Furtherance of a Drug Trafficking Crime in violation of 18
U.S.C. § 924(c)(1)(A). ECF No. 17. On April 5, 2017, the
Court accepted the plea and found Speight guilty of Counts
Eight and Nine. ECF No. 16. On July 10, 2017, the Court
sentenced Speight to a total of 100 months imprisonment and
five years' supervised release. ECF No. 30.
did not file a Notice of Appeal pursuant to his original
guilty plea, but acting pro se, Petitioner filed the
instant § 2255 Petition and Memorandum on July 10, 2018.
ECF Nos. 35-36. On July 12, 2018, the Government filed its
Response. ECF No. 37.
§ 2255 Petition, Speight raises two grounds of relief to
vacate Count Nine, Possession of Firearms in Furtherance of a
Drug Trafficking Crime in violation of 18 U.S.C. §
924(c)(1)(A). Mem. in Supp. of Mot. to Vacate 4, ECF No. 36.
First, Speight alleges that Counsel was ineffective in
failing to object to Count Nine, because his possession of
"the firearm did not further any drug sales,"
therefore not satisfying the "use of a firearm"
element of the crime. Id. at 10. Second, Speight
alleges that Counsel was ineffective in not informing him of
the option of an open plea. Id. at 4, 16-17.
response, the Government argues that the Petitioner failed to
show that his counsel's representation fell below the
objective standard of reasonableness for either issue, as
articulated in Strickland v. Washington, 466 U.S.
668 (1984); therefore, his request for relief should be
denied. Response 9-16, ECF No. 39.
Section 2255 Generally
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). 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. "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" that would yield "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)).
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). When deciding a § 2255 motion, the
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). Whether a hearing is mandatory for a § 2255
Motion and whether petitioner's presence is required at
the hearing is within the district court's sound
discretion and is reviewed for abuse of discretion.
Raines v. United States, 423 F.2d 526, 529 (4th Cir.
1970) (citing Machibroda v. United States, 368 U.S.
487 (1962)). Motions under § 2255 "will not be
allowed to do service for an appeal." Sunal v.
Large, 332 U.S. 174, 178 (1947). 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).