United States District Court, E.D. Virginia, Newport News Division
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.
FACTUAL AND PROCEDURAL HISTORY
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).
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.
20, 2018, Petitioner timely filed the instant § 2255
Motion, which was docketed by the Clerk of this Court on July
20, 2018. ECF No. 95. Such motion is now before the
PETITIONER'S § 2255 MOTION
Standard of Review
U.S.C. § 2255 allows a federal prisoner to move to
"vacate, set aside or correct" a federal sentence
on one of four grounds: " that the sentence was
imposed in violation of the Constitution or laws of the
United States, or  that the court was without jurisdiction
to impose such sentence, or  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 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).
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).
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).
§ 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.
Ground One: Petitioner Claims that His § 924(c)
Convictions are Invalid Because He Was Not Convicted of the
Underlying Crimes of Violence.
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 ...