United States District Court, W.D. Virginia, Big Stone Gap Division
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for United States; Ralph Marlow, Defendant Pro Se.
P. JONES UNITED STATES DISTRICT JUDGE
defendant, proceeding pro se, has filed a motion seeking
relief under 28 U.S.C. § 2255. The United States has
filed a motion to dismiss, to which the movant has responded.
For the reasons stated, I will grant the motion to dismiss
and dismiss the § 2255 motion.
pleading guilty, the defendant was sentenced by this court on
January 5, 2017, to a total term of 123 months imprisonment,
consisting of 63 months on Count One of the Second
Superseding Indictment, to be followed by a term of 60 months
on Count Sixteen. Count One charged the defendant with
conspiring to distribute methamphetamine, a Schedule II
controlled substance, in violation of 21 U.S.C. §§
846 and 841(b)(1)(C), and Count Sixteen charged him with
possessing a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c).
§ 2255 motion, the defendant contends that his attorney
was constitutionally ineffective in three difference ways, as
follows: (1) he did not correctly advise him of the elements
of the § 924(c) charge contained in Count Sixteen; (2)
he failed to challenge Count Sixteen as duplicitous; and (3)
he failed to challenge Count Sixteen on the ground that it
did not charge a valid offense.
state a viable claim for relief under § 2255, a
defendant must prove: (1) that his sentence was
“imposed in violation of the Constitution or laws of
the United States”; (2) that “the court was
without jurisdiction to impose such sentence”; or (3)
that “the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). The movant bears the
burden of proving grounds for a collateral attack by a
preponderance of the evidence. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958).
defendants have a Sixth Amendment right to effective legal
assistance. Strickland v. Washington, 466 U.S. 668,
687 (1984). Ineffective assistance claims, however, are not
lightly granted - “[t]he benchmark for judging any
claim of ineffectiveness must be whether counsel's
conduct so undermined the proper functioning of the
adversarial process that the [proceeding] cannot be relied on
as having produced a just result.” Id. at 686.
To that end, a defendant must satisfy a two-prong analysis
showing both that counsel's performance fell below an
objective standard of reasonableness and that the defendant
was prejudiced by counsel's alleged deficient
performance. Id. at 687. To satisfy the prejudice
prong of Stickland, a defendant must show that there
is a reasonable probability that, but for counsel's
unprofessional error, the outcome of the proceeding would
have been different. Id. at 694.
his first ground of attack upon his attorney's
representation, the defendant contends that his attorney
advised him that he had no defense to the § 924(c)
charge because he had been caught with drugs while in
possession of firearms. The defendant contends that the
lawyer thus confused the elements of 18 U.S.C. § 922(g)
(procession of a firearm by a felon) with those of §
924(c). However, the transcript of the defendant's change
of plea hearing on May 16, 2017, (held with a codefendant)
reveals the following colloquy with the court:
THE COURT: Let me go over with you, gentlemen, the charge or
charges to which you wish to plead guilty.
Now, count 16, as to Mr. Marlow, charges that on or about and
between January 1, 2014 and November 24, 2015 that Mr. Marlow
knowingly used and carried during and in relation to and
possessed in furtherance of a drug trafficking crime, namely
the crime set forth in count one, a firearm.
If the case went to trial as to that charge, in order to
convict you, Mr. Marlow, that count of, that count 16, the
Government would have to prove beyond a reasonable doubt that
you used or carried a firearm in relation to the drug
trafficking crime as set forth in count one. It means that
you actively employed the firearm in committing that offense.
As an alternative, the Government would be required to prove
beyond a reasonable doubt that you knowingly possessed the
firearm, meaning that you knew that you had a firearm, and
that that possession furthered a drug trafficking crime. That
means that the firearm helped further advance the drug
trafficking crime. Mere possession of a firearm is not
sufficient under this count.
Now, let me ask you both, do you understand what the
Government would have to prove in order to convict you if