United States District Court, E.D. Virginia, Newport News Division
ANTONIO J. CROWDER, Petitioner,
UNITED STATES OF AMERICA, Respondent
MEMORANDUM OPINION AND ORDER
Raymond A Jackson United States District Judge
the Court is pro se litigant Antonio J.
Crowder's ("Petitioner") Motion to Vacate, Set
Aside, or Correct a Sentence by a Person in Federal Custody
pursuant to Title 28, United States Code, Section 2255
("2255 Motion"). Having reviewed the motions and
filings, the Court finds that a hearing is not necessary to
address Petitioner's motion. See 28 U.S.C.
§ 2255(b). For the reasons set forth below,
Petitioner's 2255 Motion is DENIED.
FACTUAL AND PROCEDURAL HISTORY
April 11, 2017, Petitioner was named in a four-count
indictment in the Eastern District of Virginia. ECF No. 1. On
June 12, 2017, Petitioner pled guilty by plea agreement to
one count of Conspiracy to Distribute and Possess with Intent
to Distribute Cocaine Base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), 846. ECF No. 19. In the
plea agreement, Petitioner waived his right to appeal. ECF
No. 20 at ¶ 6. In the Statement of Facts that Petitioner
knowingly signed, Petitioner states that he was involved in a
conspiracy to distribute more than 280 grams of cocaine base.
ECF No. 21 at ¶¶ 1, 4. On October 2, 2017,
Petitioner was sentenced to 120 months imprisonment. ECF No.
October 9, 2018, Petitioner filed his 2255 Motion claiming
that his conviction was illegitimate because the Court
sentenced him beyond the statutory maximum, the conspiracy
charge was an unconstitutional common law crime, and counsel
was ineffective in failing to raise these issues. ECF No. 34.
On the same day, the Court ordered the Government to respond.
ECF No. 35. On January 22, 2019, the Government filed its
response in opposition. ECF No. 36. Petitioner did not file a
2255 allows a federal prisoner "claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States
... [to] move the court which imposed the sentence to vacate,
set aside or correct the sentence." 28 U.S.C. §
2255. In a § 2255 motion, the petitioner bears the
burden of proving his or her claim by a preponderance of the
evidence. See Miller v. United States, 261 F.2d 546,
547 (4th Cir. 1958). Additionally, pro se filers are
entitled to more liberal construction of their pleadings.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
deciding a § 2255 motion, the Court must promptly grant
a hearing "unless 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). Motions under
§ 2255 generally "will not be allowed to do service
for an appeal." Sunal v. Large, 332 U.S. 174,
178-79 (1947). For this reason, issues already fully
litigated on direct appeal may not be raised again under the
guise of a collateral attack. United States v.
Dyess, 730 F.3d 354, 360 (4th Cir. 2013). Issues that
should have been raised on direct appeal are deemed waived,
procedurally defaulted, and cannot be raised on a 2255
Motion. United States v. Mikalajunas, 186 F.3d 490,
492 (4th Cir. 1999). However, an individual may raise a
procedurally defaulted claim if he/she can show (1)
"cause and actual prejudice resulting from the errors of
which he complains" or (2) that "a miscarriage of
justice would result from the refusal of the court to
entertain the collateral attack.... [meaning] the movant must
show actual innocence by clear and convincing evidence."
Id. at 492-93. To demonstrate cause and prejudice, a
petitioner must show the errors "worked to [her] actual
and substantial disadvantage, infecting [her] entire trial
with error of constitutional dimensions." United
States v. Frady, 456 U.S. 152, 170 (1982). Ineffective
assistance of counsel claims should generally be raised in a
collateral motion instead of on direct appeal and constitute
sufficient cause to review a procedurally defaulted claim.
See Untied States v. Benton, 523 F.3d 424, 435 (4th
Cir. 2008); Mikalajunas, 186 F.3d at 493.
Ineffective Assistance of Counsel
viable ineffective assistance of counsel claim arises when
"the counsel's conduct so undermined the proper
functioning of the adversarial process that the trial did not
result in a just outcome." Strickland v.
Washington, 466 U.S. 668, 686 (1984). To prove a claim
of ineffective assistance of counsel, a petitioner must make
a petitioner must show that counsel's performance was
deficient. Id. at 687. Counsel's errors must
have been so serious that he or she was not actually
functioning as "counsel" as guaranteed by the Sixth
Amendment. Id. In order to demonstrate deficient
performance, a petitioner must show "that counsel's
representation fell below an objective standard of
reasonableness" under the prevailing norms of the legal
community. Id. at 688.
scrutiny of counsel's performance must be highly
deferential," so "a court must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance."
Id. at 689. That presumption is even greater when
counsel's decisions represent strategic, tactical
decisions requiring "assessment and balancing of
perceived benefits against perceived risks." United
States v. Terry, 366 F.3d 312, 317 (4th Cir. 2004). A
petitioner bears the burden of rebutting this presumption.
Strickland, 466 U.S. at 689.
a petitioner must show that the deficient performance
prejudiced the defense. Id. at 687. In other words,
counsel's errors must have been so serious that the
petitioner was deprived of a fair trial with a reliable
result. Id. To demonstrate prejudice, a petitioner
must prove 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 Supreme Court defined a reasonable probability as
"a probability sufficient to undermine confidence in the
outcome." Id. In short, "[a]n error by
counsel, even if professionally ...