United States District Court, E.D. Virginia, Alexandria Division
M. HILTON, UNITED STATES DISTRICT JUDGE
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).
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.
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).
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.
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.
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.
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.
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.
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).
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).
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).
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).
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 ...