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McNair v. United States

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

March 26, 2019

WILDER J. MCNAIR, JR., Petitioner,


          Raymond A. Jackson United States District Judge.

         Before the Court is pro se litigant Wilbert J. McNair, Jr.'s ("Petitioner") Motion to Vacate, Set Aside, or Correct a Sentence 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 motions. See 28 U.S.C. § 2255(b). For the reasons set forth below, Petitioner's 2255 Motion is DENIED.


         From February 2013 to May 2017, Petitioner sought to defraud the Commonwealth of Virginia by providing false information regarding the amount of hourly instruction given and the manner and quality of the instruction provided to veteran students at Hampton Roads Skills Center ("HRSC"). ECF No. 9 at 7. HRSC utilized Virginia's tuition assistance funds and purported to offer classroom instruction in a "combination welding course and a [twenty-five] week welding program in stick, flux core, MIG, and TIG welding along." Id. at 5-6. However, the majority of the students did not physically attend when classes were purportedly held and some never attended classes during their enrollment period. Id. at 7. Because of Petitioner's fraud, Virginia suffered a loss of $1, 402, 232.38. Id. at 6, 10. Subsequently, on June 19, 2017, Virginia withdrew its approval for HRSC to receive tuition assistance funds. Id.

         Additionally, Petitioner failed to report $91, 450.00 in 2013, $11, 489 in 2014, and $39, 479.52 in 2015 on his tax income reports. ECF No. 15 at 14. Petitioner's disparities resulted in a loss to the United States Internal Revenue Service ("IRS") of $55, 688 in 2013, $1, 015 in 2014, and $12, 965 in 2015. Id. Petitioner has yet to file taxes for 2016 and 2017. Id.

         On November 9, 2017, Petitioner was named in two-counts, charging him with wire fraud conspiracy, in violation of 18 U.S.C. § 1349, and making and subscribing a false tax return, in violation of 26 § U.S.C 7206(1). ECF No. 2. On December 21, 2017, Petitioner appeared in a plea hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure before a United States Magistrate. ECF No. 7. The Judge accepted Petitioner's guilty plea to count one, wire fraud conspiracy, under 18 U.S.C. § 1349 and count two, making and subscribing a false tax return, under 26 § U.S.C 7206(1) upon finding they were made knowing, voluntary, and supported by an independent basis in fact. ECF No. 10. In the Presentence Investigation Report, the probation officer noted a two-level enhancement for Petitioner's failure to report $10, 000 or more income in income derived from illegal activity to the IRS. ECF No. 19. Subsequently, Petitioner's counsel made two objections to this enhancement in his sentencing position paper. ECF No. 21 at 1. On May 1, 2018, the Court sentenced the Petitioner to 40 months of imprisonment and ordered him to pay $200 in special assessment fees and $1, 471, 891.38 in restitution. ECF No. 23 at 4.

         On October 31, 2018, Petitioner filed the instant 2255 Motion. ECF No. 28. Petitioner claims that his counsel was ineffective because: (1) he failed to properly inform Petitioner of the consequences of the guilty plea; (2) he failed to object to the use of the relevant conduct at sentencing; (3) he failed to adequately consult with Petitioner about his right to appeal or file a notice of appeal; and (4) Petitioner was prejudiced due to his counsel's ineffectiveness. Id. at 3-8. On November 13, 2018, the Court ordered the government to respond. ECF No. 29. On November 23, 2018, the government filed a Motion to Compel Petitioner's counsel ("Mr. Cejas") to provide information that is reasonably necessary to respond to Petitioner's 2255 motion. ECF No. 30. The Court granted the government's motion on December 4, 2018. ECF No. 32. On December 26, 2018, the government filed its response. ECF No. 33. Petitioner was given an opportunity to file a reply but has yet do to so. See ECF No. 29.


         A. Section 2255

         Section 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).

         When 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.

         B. Ineffective Assistance of Counsel

         A 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 ...

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