United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE.
Keith Garvin, a federal inmate proceeding pro se,
submitted this motion under 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence ("§ 2255
Motion," ECF No. 102). In his § 2255 Motion, Mr,
Garvin asserted that he was entitled to relief upon the
Claim One "Lawyer was ineffective for failing to
communicate plea offer to me from the Government during the
plea window." (§ 2255 Mot. 4.)
Claim Two Counsel failed to provide effective assistance
during the plea process because: (a) counsel failed to
provide Mr. Garvin with advice as to what sentence he would
receive if he pled guilty versus what sentence he would
receive if he went to trial (b) counsel failed to explain to
Mr. Garvin that he could plead to some counts and pursue a
trial on other counts. (Id. at 5.)
Claim Three "Lawyer was ineffective at my sentencing
hearing and had an actual conflict of interest" (Id.
Claim Four "Lawyer was ineffective for failing to
investigate for an obvious defense." (Id. at
Garvin later moved to add a fifth claim pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015):
Claim Five In the wake of Johnson v. United States,
135 S.Ct. 2551 (2015), Mr. Garvin's convictions for use
of a firearm during the commission of a crime of violence
(Count 2 and 4) must be vacated.
(ECF No. 121, at 1.)
Garvin's first four claims contend that his counsel,
Craig Sampson, Esq., provided ineffective assistance of
counsel that caused Mr. Garvin to, inter alia,
forego a favorable plea agreement and coerced Mr. Garvin into
involuntarily pleading to crimes of which he is innocent. Mr.
Garvin's claims are without merit. For example, with
respect to Claim One, the record reveals that Mr.
Garvin's stubborn refusal to timely acknowledge his guilt
and accept the attendant sentences, rather than any
ineffective assistance, prevented Mr. Garvin from receiving
the benefit of the Government's initial plea offer.
INITIAL PROCEDURAL HISTORY
September 12, 2012 and March 25, 2013, Mr. Garvin and other
coconspirators robbed several jewelry stores in Maryland and
Virginia. (ECF No. 70 ¶ 6.) "[Mr.] Garvin was
considered the 'front man' in all the robberies
except for the Zales Jewelers in Spotsylvania, Virginia.
[Mr.] Garvin would walk into the stores, make conversations
with the clerk, and have them open a case. The coconspirators
would then come into the stores carrying or brandishing
firearms." (Id. ¶ 7.) The Presentence
Report reveals the following with respect to these robberies:
Zales Jewelry Store - Baltimore County,
On September 12, 2012, Mr. Garvin and Michael Anthony
Richardson robbed the Zales Jewelry store in Owings Mills,
Maryland. (Id. ¶ 9.) Although Richardson
brandished a gun, it was not a real gun. (Id.
¶¶ 7, 9.)
Kay Jewelers Store - Henrico County,
On November 13, 2012, Mr. Garvin, Michael Anthony Smith, and
another individual robbed the Kay Jewelers Store in Henrico,
Virginia, "while brandishing a firearm."
(Id. ¶ 110 Zales Jewelry Store -
Spotsylvania, Virginia On January 12, 2013, Mr.
Garvin, Richardson, and Veronica Smith, attempted to rob a
Zales Jewelry Store in Fredericksburg, Virginia.
(Id. ¶ 13.) Richardson was armed with a
handgun. (Id.) The jewelry store "clerk jumped
the counter and subdued Richardson causing him to drop the
firearm." (Id.) Smith and Mr. Garvin fled,
grabbing the dropped firearm and a ring that belonged to the
Littman Jewelers - Short Pump, Virginia
On February 18, 2013, Mr. Garvin and two coconspirators
robbed Littman Jewelers in Short Pump, Virginia.
(Id. ¶ 19; ECF No. 43, at 2-3.) "The two
coconspirators brandished firearms during the robbery."
(ECF No. 70 ¶ 19.)
Finks Jewelers - Stony Point, Virginia
On March 25, 2013, Mr. Garvin and two coconspirators robbed a
Finks Jewelers in the Stony Point Fashion Park in Richmond,
Virginia. (Id. ¶21.) Two of the coconspirators
brandished firearms. (Id.)
The Initial Charges
August 20, 2013, Mr. Garvin and Veronica Smith were named in
a two-count Indictment. (ECF No. 13.) Count One charged Mr.
Garvin and Smith with the attempted Hobbs Act robbery of the
Zales Jewelry Store in Spotsylvania, Virginia, on January 12,
2013. (Id. at 1.) Count Two charged Mr. Garvin and
Smith with use and carry of a firearm during and in relation
to the crime of violence that was the subject of Count One.
(Id. at 2.)
November 4, 2013, Mr. Garvin was arrested by the United
States Marshal's fugitive task force. (ECF No. 70 ¶
23.) In the process of being transported to this Courthouse,
Mr. Garvin made several incriminating statements to federal
agents. Agent Sensabaugh read Mr. Garvin his Miranda
rights, and Mr. Garvin indicated that he understood those
rights. (Jan. 13, 2014 Tr. 10.) Agent Sensabaugh informed Mr.
Garvin that two of his coconspirators were in custody and
"were making statements against him," (Jan. 13,
2014 Tr. 18), and they had video evidence of the "use of
a firearm in the robberies. To which [Mr. Garvin] immediately
replied, I never used a gun." (Jan. 13, 2014 Tr. 18-19.)
Agent Sensabaugh explained to Mr. Garvin that "there was
video evidence of him walking into a jewelry store, bending
down and picking up the gun that his co- conspirator had
dropped." (Jan. 13, 2014 Tr. 19.) Mr. Garvin
"immediately replied, 'I never pointed a gun at
anyone. Never brandished it.'" (Jan. 13, 2014 Tr.
Mr. Garvin also told Agent Sensabaugh that he turned to armed
robberies to pay back someone he owed for a drug-related
debt. (Jan. 13, 2014 Tr. 21-22.) Agent Sensabugh then asked
Mr. Garvin about the "the progression of
merchandise" that Mr. Garvin stole. (Jan. 13, 2014 Tr.
22.) Mr. Garvin "interjected, 'What do you mean? Why
I went from rings to Rolex?'" (Jan. 13, 2014 Tr.
22.) Mr. Garvin then explained it was significantly more
profitable to steal the Rolexes. (Jan. 13, 2014 Tr. 23.)
November 5, 2013, Craig Sampson, Esq., was appointed to
represent Mr. Garvin. (ECF No. 27.) On November 13, 2013, Mr.
Garvin was arraigned on the original Indictment. (ECF No.
30.) Mr. Garvin was informed that he faced up to twenty years
of imprisonment for Count One and five years to life
imprisonment for Count Two. The matter was set for a jury
trial on January 13, 2014.
December 30, 2013, Mr. Garvin, by counsel, filed a Motion to
Suppress his statements to the ATF agents. (ECF No. 35.)
January 13, 2014, the Court conducted a hearing on the Motion
to Suppress. (ECF No. 40.) The Court denied the Motion to
Suppress with respect to the statements set forth above.
January 21, 2014, Mr. Garvin was named in a seven-count
Superseding Indictment. (ECF No. 43.) Counts One and Two in
the Superseding Indictment charged the same conduct that was
the subject of Counts One and Two of the original Indictment.
(ECF No. 43, at 1-2.) Count Three charged Mr. Garvin with the
Hobbs Act robbery of the Kay Jewelers on November 13, 2012.
(Id. at 2.) Count Four charged Mr. Garvin with
using, carrying, and brandishing a firearm during and in
relation to the crime charged in Count Three. (Id.)
Count Five charged Mr. Garvin with the Hobbs Act robbery of
the Littman Jewelers on February 18, 2013. (Id. at
2-3.) Count Six charged Mr. Garvin with the Hobbs Act robbery
of the Finks Jewelers on March 25, 2013. (Id. at 3.)
Count Seven charged Mr. Garvin with conspiracy to commit
Hobbs Act robbery from September 12, 2012 through March 25,
2013. (Id. at 4.) On January 30, 2014, Mr. Garvin
was arraigned on the Superseding Indictment. (ECF No. 47.)
The matter was set for a jury trial on May 12, 2014.
Mr. Garvin's Guilty Plea and Sentencing
12, 2014, on the morning of trial, Mr. Garvin refused to
change out of his jail clothes into civilian clothes and
sought to discharge Mr. Sampson as counsel. (May 12, 2014 Tr.
3-5.) The Court denied his request. (May 12, 2014 Tr. 10.)
After the jury was seated and Mr. Garvin heard the
Government's opening statement, Mr. Garvin changed his
mind and decided to plead guilty to the charges in the
Superseding Indictment. (See Aug. 15, 2014 Tr.
to sentencing, Mr. Garvin moved to withdraw his plea and have
new counsel appointed. (ECF No. 74.) After hearing from the
parties and Mr. Garvin, the Court denied Mr. Garvin's
motions. (ECF No. 81.) Thereafter, the Court sentenced Mr.
Garvin to thirty years and one day of imprisonment. (ECF No.
83, at 3.) The sentence consisted of five years on Count Two
and twenty-five years on Count Four, to be served
consecutively, and a term of one day on Counts One, Three,
Five, Six, and Seven to run concurrently with each other.
an unsuccessful appeal, (ECF No. 94), Mr. Garvin filed his
present § 2255 Motion.
ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL
In Claim One, Mr. Garvin contends that:
My attorney, Mr. Sampson, never communicated to me or showed
me the plea that the prosecutor said she gave [to] Mr.
Sampson to give to me at my sentencing hearing, nor did he
communicate a plea of any kind to me, he only told me,
"if I plead guilty to Counts One and Two I would get 15
(§ 2255 Mot. 4.) As explained below, the record,
including Mr. Garvin's own submission, reflect that he
was well aware of the prosecution's initial plea offer,
that Mr. Sampson provided competent advice with respect to
that offer, but that Mr. Garvin refused the offer while it
was available because he obstinately believed he should not
spend but a few years in jail for his crimes.
The Initial Plea Offer
the sentencing proceedings, the prosecutor outlined the plea
offer that had been available to Mr. Garvin. The prosecutor
had "offered to Mr. Garvin that he could plead guilty to
the Spotsylvania robbery, which was the robbery charged in
the original indictment, and the 924(c) count, and take
responsibility in his statement of facts for the other
robberies that he was involved in." (Aug. 15, 2014 Tr.
16.) According to the prosecutor,
So late in December of 2013, Mr. Sampson called and said,
look, Mr. Garvin doesn't want to have to take
responsibility for all of these.... But can't he just
plead to the indictment as is? I said, certainly he can. But
I will indict him on the other robberies at the next grand
He asked, well, is there any way he can just plead to these
and not get indicted? I said, no, there is absolutely no way
we will not indict these other robberies, unless he takes
responsibility for them in the plea agreement.
It was at that point there were, apparently, more discussions
between Mr. Garvin and Mr. Sampson. And the motion ...