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Pemberton v. United States

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

January 9, 2019

JERROD PEMBERTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

         This matter comes before the Court upon Jerrod Pemberton's ("Petitioner") pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion"). ECF No. 95. In such motion, Petitioner asks the Court to vacate his judgment of conviction and sentence on the grounds that his two convictions for brandishing a firearm under 18 U.S.C. § 924(c)(1)(A) are unlawful and that his defense counsel rendered constitutionally deficient assistance. For the reasons set forth herein, Petitioner has failed to state a cognizable claim for relief. Accordingly, his § 2255 Motion must be DENIED.

         I. FACTUAL AND PROCEDURAL HISTORY

         On May 8, 2017, a federal grand jury sitting in Newport News, Virginia named Petitioner and two-codefendants in an eleven-count criminal indictment charging them with the following eleven counts: Conspiracy to Interfere with Commerce by Robbery in violation of 18 U.S.C. § 1951(a) (Count 1); five counts of Robbery Affecting Commerce in violation of 18 U.S.C. §§ 1951(a) and 2 (Counts 2, 4, 6, 8 and 10); and five counts of Possessing and Brandishing a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A) and 2 (Counts 3, 5, 7, 9 and 11). ECF No. 1. On August 17, 2017, pursuant to a written plea agreement with the United States ("Government'*), Petitioner appeared before the magistrate judge and pled guilty to Conspiracy (Count 1) and two counts of Possessing and Brandishing a Firearm in violation of § 924(c)(1)(A) (Counts 3 and 11). ECF No. 24. Pursuant to the mandatory "stacking" penalty under § 924(c)(1), Petitioner faced a mandatory minimum sentence of 7 years on Count 3 plus a mandatory minimum sentence of 25 years on Count 11, each to be served consecutive to the sentences imposed on all other counts. See 18 U.S.C. §§ 924(c)(1)(A)(ii) and (c)(1)(C)(i).

         On November 13, 2017, Petitioner appeared before the Court for sentencing. ECF No. 69. During the hearing, the Court accepted Petitioner's pleas of guilty, found him guilty of the offenses, and imposed a total of 408 months in prison, which was 73 months below the low end of Petitioner's advisory sentencing range under the Guidelines. See Judgment, ECF No. 73 at 2; Sealed Statement of Reasons, ECF No. 74. Petitioner's total term of imprisonment includes 24 months on Count 1 plus the mandatory minimum sentences of 7 years (84 months) on Count 3 and 25 years (300 months) on Count 11, all to be served consecutively. ECF No. 73, at 2. Final judgment was entered on November 15, 2017. Id. Petitioner did not appeal.

         On June 20, 2018, Petitioner timely filed the instant § 2255 Motion, which was docketed by the Clerk of this Court on July 20, 2018.[1] ECF No. 95. Such motion is now before the Court.

         II. PETITIONER'S § 2255 MOTION

         A. Standard of Review

         28 U.S.C. § 2255 allows a federal prisoner to move to "vacate, set aside or correct" a federal sentence on one of four grounds: "[1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [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 [4] is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The Supreme Court has held that § 2255 is the appropriate vehicle by which a federal prisoner may challenge both his conviction and sentence. Davis v. United States, 417 U.S. 333, 343, 44 (1974).

         However, a § 2255 motion "may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165 (1982). Generally, any claim that could have been raised at trial or on direct appeal, but was not, is barred as procedurally defaulted. Bousley v. United States, 523 U.S. 614, 622 (1998). But this rule of default excludes claims of ineffective assistance of counsel, Massaro v. United States, 538 U.S. 500, 504 (2003), which are generally not cognizable on direct appeal unless the record on appeal conclusively shows ineffective assistance, United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (internal citation omitted).

         When filing a § 2255 petition, the petitioner bears the burden of proving his grounds for relief by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)). However, a pro se petitioner is entitled to have his petition and issues asserted therein construed liberally. Gordon. 574 F.2d at 1151. Upon reviewing a § 2255 motion, the district court may, in its discretion, deny the motion without a hearing. Raines v. United States, 423 F.2d 526, 529-31 (4th Cir. 1970). But it may only do so if "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).

         B. Discussion

         In his § 2255 Motion, Petitioner asks the Court to set aside both his judgment of conviction and his sentence on five purported grounds. ECF No. 95. Grounds One, Two and Five challenge the lawfulness of his § 924(c) convictions, and Grounds Three and Four assert claims of ineffective assistance of counsel. Id. The Court shall address each of these grounds in turn below.

         1. Ground One: Petitioner Claims that His § 924(c) Convictions are Invalid Because He Was Not Convicted of the Underlying Crimes of Violence.

         Ground One alleges that Petitioner's two § 924(c) convictions (Counts 3 and 11) were premised on the commission of crimes of violence, namely, the robberies alleged in Counts 2 and 10 of the indictment, but such counts were ultimately dismissed pursuant to Petitioner's plea agreement with the Government. ECF No. 95 at 4. Petitioner therefore argues that the essential elements ...


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