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Speight v. United States

United States District Court, E.D. Virginia, Norfolk Division

October 30, 2018

EVRICK P. SPEIGHT Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          Raymond A. Jackson United States District Judge.

         Before 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.

         I. FACTUAL AND PROCEDURAL HISTORY

         For 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 sold").

         A grand 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, Esq. Id.

         Petitioner 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.

         Petitioner 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.

         In his § 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.

         In 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.

         II. LEGAL STANDARDS

         A. Section 2255 Generally

         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). 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)).

         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). 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).

         B. Ineffective ...


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