United States District Court, W.D. Virginia, Big Stone Gap Division
P. Jones United States District Judge Randy Ramseyer,
Assistant United States Attorney, Abingdon, Virginia, for
Lebron, Defendant Pro Se.
P. Jones United States District Judge.
defendant, Victor Lebron, proceeding pro se, has filed a
motion seeking relief under 28 U.S.C. § 2255. The United
States has filed a motion to dismiss, to which the movant has
responded. For the reasons stated, I will grant the motion to
dismiss and dismiss the § 2255 motion.
pleading guilty to an Information, the defendant was
sentenced by this court on March 27, 2017, to a term of 36
months imprisonment. The Information charged the defendant
with possession of a prohibited object in prison, in
violation of 18 U.S.C. § 1791(a)(2), (b)(3), and
§ 2255 motion, the defendant contends that an expunged
incident report from an administrative investigation amounts
to new evidence. He further asserts that his counsel was
ineffective in failing to investigate and that had his
counsel investigated and advised him differently, he would
not have pleaded guilty.
state a viable claim for relief under § 2255, a
defendant must prove: (1) that his sentence was
“imposed in violation of the Constitution or laws of
the United States”; (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 is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). The movant bears the
burden of proving grounds for a collateral attack by a
preponderance of the evidence. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958).
defendants have a Sixth Amendment right to effective legal
assistance. Strickland v. Washington, 466 U.S. 668,
687 (1984). Ineffective assistance claims, however, are not
lightly granted - “[t]he benchmark for judging any
claim of ineffectiveness must be whether counsel's
conduct so undermined the proper functioning of the
adversarial process that the [proceeding] cannot be relied on
as having produced a just result.” Id. at 686.
To that end, a defendant must satisfy a two-prong analysis
showing both that counsel's performance fell below an
objective standard of reasonableness and that the defendant
was prejudiced by counsel's alleged deficient
performance. Id. at 687. To satisfy the prejudice
prong of Strickland, a defendant must show that
there is a reasonable probability that, but for counsel's
unprofessional error, the outcome of the proceeding would
have been different. Id. at 694.
extraordinary circumstances, “allegations in a §
2255 motion that directly contradict the petitioner's
sworn statements made during a properly conducted Rule 11
colloquy are always palpably incredible and patently
frivolous or false.” United States v.
Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (internal
quotation marks omitted). During his plea hearing, Lebron
testified under oath that he was satisfied with his
attorney's performance and that he was pleading guilty
because he was, in fact, guilty. He testified that he
understood he was waiving his right to collaterally attack
his sentence except as to claims of ineffective assistance of
counsel. He did not contest the prosecutor's recitation
of the facts of his offense, including that he had defecated
rubber balloons containing strips that were tested and shown
to be Suboxone, a Schedule III controlled substance.
knowingly and intelligently waived his right to collaterally
attack his sentence for reasons other than ineffective
assistance of counsel, and this waiver covers the first
ground asserted in his § 2255 motion. Even if he had not
waived his right to collaterally attack his sentence, the
expunged incident report would not amount to newly discovered
evidence sufficient to undermine his conviction. Lebron has
failed to show how the expunged report has any bearing on his
guilt or innocence. He alleges that the report referred to
the contents of the balloons as an unknown substance rather
than as Suboxone. Lebron argues that had counsel
investigated, counsel would have discovered this
inconsistency, which could have been used to impeach the
person who wrote the report. According to Lebron, had he been
advised of this inconsistency, he would not have pled guilty.
arguments contradict the sworn testimony he gave at his plea
hearing, wherein he admitted that the strips contained
Suboxone. The incident report to which Lebron refers actually
states that the strips from the balloons were sent to the
Federal Bureau of Investigation for testing and that the
strips tested positive for buprenorphine, the drug contained
in Suboxone strips. An earlier report states that in-house
testing conducted at the prison showed that the strips were
positive for opium alkaloids. These two statements are not
inconsistent. The later testing simply shows more
specifically what substance the strips contained, a fact that
could not be precisely determined by the earlier test.
Counsel's alleged failure to note this supposed
inconsistency does not amount to an unprofessional error
under Strickland and did not prejudice Lebron.
these reasons, the United States' Motion to Dismiss will
be granted and the § 2255 motion will be dismissed. A