United States District Court, E.D. Virginia, Norfolk Division
WILDER J. MCNAIR, JR., Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge.
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
FACTUAL AND PROCEDURAL HISTORY
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.
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.
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.
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.
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.
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