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United States v. Gunn

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

February 19, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
MICHAEL EDWARD GUNN, Defendant/Petitioner.



         THIS MATTER comes before the Court on Petitioner Michael Edward Gunn's ("Petitioner") Motion to Vacate his Sentence under 28 U.S.C. § 2255 (Dkt. 161).

         On May 17 2017, Petitioner was charged along with Vanessa Domingues and Angel Tia Gunn, his wife, with conspiracy to sex traffic minors, in violation of 18 U.S.C. §§ 1591(a)(1), (b)(2), (c), 1594(c). On May 19, 2017, a Rule 5 initial hearing was held during which the Government read in open court the maximum penalties involved for the alleged crimes, including a maximum of life imprisonment.

         On June 15, 2017 a grand jury returned a five-count indictment against the three defendants charging: conspiracy to engage in sex trafficking of minors, in violation of 18 U.S.C. §§ 1591(a)(1), (b)(2), (c) and 1594(c) (Count 1); sex trafficking minor victims J.M. and B.R., in violation of §§ 1591(a)(1), (b)(2), (c) and 2 (Counts II & III); commission of a felony involving a minor by a registered sex offender, in violation of 18 U.S.C. § 2260A (Count IV as to Petitioner only); and interstate travel and use of a facility in interstate commerce to promote prostitution, in violation of 18 U.S.C. §§ 1952(a)(3) and 2 (Count V).

         On July 14, 2017, Ms. Gunn and Ms. Domingues both pleaded guilty to Counts II and II and agreed to provide substantial assistance to the Government. On that same day, Petitioner's attorney, Chong Park, moved to withdraw his representation citing continuous "sharp disagreements as to the means by which to seek their objective of seeking an acquittal." This Court granted Mr. Park's motion and appointed Gregory Hunter as Petitioner's new attorney.

         Petitioner informed Mr. Hunter of his desire to go to trial despite Mr. Hunter's advice. Nevertheless, Mr. Hunter explored the possibility of a plea offer with the Government. The Government informed Mr. Hunter that any plea would still include an offense with a twenty-year mandatory minimum sentence. Mr. Hunter informed Petitioner of these discussions and Petitioner was still uninterested in a plea deal and sought to proceed to trial.

         At trial, varied evidence was put forth to show that Petitioner engaged in sex trafficking and that he knew the ages of his minor victims. This evidence included testimony from witnesses and forensic evidence of digital and electronic devices. At the end of the trial, on September 13, 2017, the jury found Petitioner guilty of all five counts.

         After trial, Petitioner's sentencing guideline range was calculated to be between 360 months and life in prison. On January 19, 2018, the Court held a sentencing hearing and sentenced Petitioner to 240 months on Counts I, II, and III of the indictment, 120 months on Count IV, and 60 months on Count V. The sentences for Counts I, II, III, and V were ordered to run concurrently. The sentence for Count IV was consecutive to Counts II and III, pursuant to the statutory language of 18 U.S.C. § 2260A mandating the ten years to run consecutive to the Section 1591 counts.

         Petitioner filed a direct appeal of his conviction and sentence on January 26, 2018. On appeal Petitioner primarily argued that there was insufficient evidence to establish the required mens rea of the victims' minor status. On January 31, 2018, Petitioner filed a motion to vacate, pursuant to 28 U.S.C. § 2255, and then an amended motion. The Court denied the motion without prejudice as the appeal was still pending. On September 12, 2018, the Fourth Circuit affirmed Petitioner's conviction and sentence. On November 26, 2018, the instant Section 2255 motion was filed with the Court.

         Under 28 U.S.C. § 2255, a petitioner may attack his sentence or conviction on the grounds that it was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence exceeded the maximum authorized by law, or that the sentence otherwise is subject to collateral attack. 28 U.S.C. § 2255; see also Hill v. United States, 368 U.S. 424, 426-27 (1962). The petitioner bears the burden of proving grounds for collateral relief by a preponderance of the evidence. Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         Relief under Section 2255 is meant to correct fundamental errors and is reserved for situations where failure to grant relief would otherwise "inherently result[] in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill, 368 U.S. at 428). A Section 2255 motion may not substitute for an appeal, and claims waived by failure to appeal are deemed procedurally defaulted unless there is a showing of actual prejudice. United States v. Frady, 456 U.S. 152, 165-67 (1982); United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir. 1994). An exception to this general rule applies when a Petitioner raises a claim of constitutionally ineffective assistance of counsel, which can be raised in a collateral attack of his conviction. See United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998).

         A Petitioner must satisfy a two-prong test in order to demonstrate ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). The two prongs are (1) deficient performance by counsel and (2) prejudice suffered by the Petitioner as a result of that deficient performance. Id. Courts are to be highly deferential when scrutinizing the performance of counsel in order to avoid the temptation of second-guessing choices made from a wide range of strategies. Id. at 689. To meet the prejudice requirement, a Petitioner must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The level of probability is "a probability sufficient to undermine confidence in the outcome." Id. Failure to demonstrate either prong is fatal to a Petitioner's claim. See United States v. Roane, 378 F.3d 382, 404 (4th Cir. 2004).

         A court need not hold an evidentiary hearing when a § 2255 motion, though facially adequate, is repudiated as to the alleged facts by the records in the case. See, e.g., Delgado-Salina v. United States, 2014 WL 259013, at *2, *5-6 (E.D. Va. Jan. 23, 2014); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978); United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996).

         Petitioner claims that he was prejudiced by ineffective assistance of counsel at three major points during his criminal prosecution: (1) he received ineffective counsel relating to a potential plea offer from the government and sentencing exposure, (2) counsel did not interview or subpoena appropriate witnesses to assist in the defense of Petitioner's case, and (3) counsel failed to ...

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