United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
G. Doumar, Judge
matter comes before the Court upon Jonathan David
Strader's ("Petitioner") pro se Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.
§ 2255 ("§ 2255 Motion"). ECF No. 122. In
such motion, Petitioner asks the Court to vacate and correct
his sentence on three grounds, each of which alleges that the
performance of Petitioner's defense counsel violated his
Sixth Amendment rights. As set forth below, Petitioner's
§ 2255 Motion is denied as to all claims except Ground
4, 2017, a federal grand jury sitting in Norfolk, Virginia
named Petitioner and three co-defendants in an eight-count
criminal indictment. ECF No. 3. Petitioner was charged with
seven of the eight counts as follows: one count of Conspiracy
to Distribute and Possess with Intent to Distribute
Methamphetamine, in violation of 21 U.S.C. §§ 846,
841(a)(1) and (b)(1)(A) (Count 1); two counts of Distribute
and Possess with Intent to Distribute Methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) (Counts 2, 4); one
count of Maintaining a Drug-Involved Premises, in violation
of 21 U.S.C. § 856(a)(1) (Count 5); and three counts of
Using a Communication Facility to Cause, Commit and
Facilitate a Felony Violation of the Controlled Substances
Act, in violation of 21 U.S.C. § 843(b) (Counts 6-8).
ECF No. 3. On August 22, 2017, Petitioner appeared before a
magistrate judge of this Court and pled guilty to Count 1
pursuant to a written plea agreement with the United States
(the "Government"). ECF No. 47.
December 4, 2017, Petitioner appeared before the Court for
sentencing. During the hearing, neither party objected to the
contents of Petitioner's presentence investigation report
("PSR"), which determined that Petitioner had a
total offense level of 39 and a criminal history category of
VI, resulting in advisory range of 360 months to life in
prison. PSR, ECF No. 80, ¶¶ 110-11. The Court
accepted Petitioner's PSR without change, and sentenced
Petitioner to the low-end of his Guidelines range: 360
months. ECF No. 93 at 2. Judgment was entered on December 5,
2017. Id. Petitioner did not appeal.
December 3, 2018, Petitioner timely filed the instant §
2255 Motion and a supporting memorandum ("Pet.
Mem."), ECF Nos. 122 and 123, which were docketed by the
Clerk of this Court on December 14, 2018. See 18 U.S.C.
§ 2255(f)(1); Houston v. Lack. 487 U.S. 266,
276 (1988) (establishing prison mailbox rule).
Petitioner's Motion is now before the Court.
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. Fradv. 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. Bouslev 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).
state a claim for ineffective assistance of counsel, the
petitioner must satisfy the two-prong test set forth in
Strickland v. Washington. 466 U.S. 668 (1984), by
showing (1) deficient performance of counsel and (2)
resulting prejudice. To satisfy the first prong, the
petitioner must articulate specific acts or omissions whereby
"counsel's representation fell below an objective
standard of reasonableness." Id. at 687-88. To
satisfy the second prong, the petitioner must show that it is
"reasonably likely" that, but for counsel's
unprofessional errors, the result of the proceedings would
have been different. Harrington v. Richter. 562 U.S.
86, 111-12 (2011) (citing Strickland. 466 U.S. at
696). Moreover, "[t]he likelihood of a different result
must be substantial, not just conceivable." Id.
(citing Strickland. 466 U.S. at 693). Failure to
satisfy either prong of Strickland is fatal to a
petitioner's claim. Carillo-Morales v. United
States. 952 F.Supp.2d 797, 803 (E.D.Va. 2013).
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 v. Leeke. 574 F.2d 1147,
1151 (4th Cir. 1978). Upon reviewing a § 2255 motion,
the district court may, in its discretion, summarily dismiss
such 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 and supporting memorandum, Petitioner
asserts three grounds on which this Court should vacate his
conviction and sentence, each alleging ineffective assistance
by his defense counsel. The Court will address each of these
grounds in turn.
Ground One: Counsel's Failure to Challenge
Petitioner's 30-Year Sentence for His ...