United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr. United States District Judge
petitioner, Benjamin Faulkner, moves to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 on
five separate grounds. (Dk. No. 77.) In addition to alleging
three claims of ineffective assistance of counsel, Faulkner
asserts that he entered an invalid guilty plea and that he
received an unreasonable sentence. Faulkner's three
ineffective assistance of counsel claims fail because he
cannot establish either (1) that his attorney's conduct
fell below that of an objectively reasonable attorney, or (2)
that prejudice resulted from any of the alleged deficiencies
in his counsel's performance. Faulkner's fourth
argument fails because his swom testimony demonstrates that
he entered a valid guilty plea. Finally, Faulkner's fifth
ground-that he received an "unreasonable"
sentence-is not cognizable under § 2255. For these
reasons, the Court will deny the motion.
2017, Faulkner pled guilty to one count of aggravated sexual
abuse of a minor in violation of 18 U.S.C. § 2241(c).
This conviction mandated 30 years to life in prison. In his
plea agreement with the government and in his plea hearing
before the Court, Faulker agreed that the government could
prove all elements of the offense and stated that he was
satisfied with his attorney's performance. (Dk. No. 48,
¶¶ 2, 3); Plea Hr'g Tr. 13:11-20, 30:1-8, May
17, 2017 (Dk. No. 69). Additionally, Faulkner affirmed that
he understood the possible penalties for violating the
relevant statute, including the minimum and maximum terms of
imprisonment. He also understood that (1) any calculation of
his advisory sentencing range under the United States
Sentencing Guidelines ("U.S.S.G." or
"Guidelines") by his lawyer represented only an
estimate and did not bind the Court; (2) the Presentence
Investigation Report ("PSR") ultimately determined
his advisory sentencing range under the Guidelines; (3) the
Court could impose a sentence above or below the Guidelines
range; and (4) by pleading guilty, he gave up rights afforded
to other criminal defendants. (Dk. No. 48, ¶¶ 1, 3,
4, 5); Plea Hr'g Tr. 19:11-14, 22:13-24:4, 26:19-29:25.
In the plea agreement, the government agreed to recommend a
sentence of 50 years, and the defendant indicated he
understood that the recommendation did not bind the Court.
(Dk. No. 48, ¶ 4); Plea Hr'g Tr. 17:14-17.
PSR reflected the statutory sentencing range of 30 years to
life, with the Guidelines recommending a life sentence based
on a criminal history category of I and an offense level of
43. (Dk. No. 55, ¶¶ 86, 87.) Due to Faulkner's
cooperation, and in accordance with the plea agreement, the
government moved for a downward variance to a 50-year
sentence. Sentencing Hr'g Tr. 18:16-21, 27:20-22, Sept.
15, 2017 (Dk. No. 70). Defense counsel also moved for a
downward variance, arguing that Faulkner could "do good
for other people" if he had a sentence of less than 50
years. (Dk. No. 57, at 5); Sentencing Hr'g Tr. 22:22. The
Court denied the variance motions and sentenced Faulker to
life in prison. Id. at 27:20-28:9. The Fourth
Circuit dismissed Faulkner's appeal because his plea
agreement included a valid appeal waiver.
motion sets forth five grounds for relief. Grounds 1 through
3 allege ineffective assistance of counsel during the guilty
plea and sentencing phases of his case. Ground 4 alleges that
Faulkner entered an invalid guilty plea because the Court (1)
failed to inform him that he could present evidence and
witnesses if he proceeded to trial, and (2) failed to mention
his appeal waiver at sentencing. Finally, Ground 5 claims
that the Court imposed an unreasonable sentence of life
STANDARD OF REVIEW
28 U.S.C. § 2255(a), a federal prisoner may challenge
the legality of his sentence on four bases: (1) "the
sentence was imposed in violation of the Constitution or laws
of the United States," (2) "the court was without
jurisdiction to impose such sentence," (3) "the
sentence was in excess of the maximum authorized by
law," or (4) the sentence "is otherwise subject to
collateral attack." 28 U.S.C. § 2255(a). "A
petitioner bears the burden of proving one of those grounds
by a preponderance of the evidence." Beyle v. United
States, 269 F.Supp.3d 716, 725 (E.D. Va. 2017).
prisoner can prove a constitutional violation under §
2255 by demonstrating that he received ineffective assistance
of counsel in violation of the Sixth Amendment. See
Strickland v. Washington, 466 U.S. 668, 686 (1984)
("[T]he [Sixth Amendment] right to counsel is the right
to the effective assistance of counsel."
(emphasis added)). To succeed on an ineffective assistance
claim, the petitioner must satisfy two elements. First, the
petitioner must demonstrate that his "counsel's
representation fell below an objective standard of
reasonableness." Id. at 688. To satisfy this
first prong-the performance prong-the petitioner must
overcome the '"strong presumption' that
counsel's strategy and tactics fall 'within the wide
range of reasonable professional assistance.'"
Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001)
(quoting Strickland, 466 U.S. at 689).
the petitioner must show that "there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 694. When,
as here, a petitioner challenges a conviction entered after a
guilty plea, the second prong-the prejudice prong-"is
slightly modified" in that the petitioner "must
show that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial." Hooper v.
Garraghty, 845 F.2d 471, 475 (4th Cir. 1988). Similarly,
for alleged ineffective assistance of counsel during
sentencing, a petitioner "must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the [sentence] would have been
different." Bowie v. Br anker, 512 F.3d 112,
120 (4th Cir. 2008) (alteration in original). "A
reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id.
petitioner alleges ineffective assistance of counsel
following a guilty plea entered during a properly conducted
Rule 11 plea colloquy, he must overcome the "formidable
barrier" of his sworn statements at that proceeding.
United States v. White, 366 F.3d 291, 295-96 (4th
Cir. 2004). "Absent clear and convincing evidence to the
contrary, a defendant is bound by the representations he
makes under oath during a plea colloquy." Fields v.
Att'y Gen. of Md, 956 F.2d 1290, 1299 (4th Cir.
1992). Accordingly, unless a petitioner shows extraordinary
circumstances, a "court should, without holding an
evidentiary hearing, dismiss any § 2255 motion that
necessarily relies on allegations that contradict the
[petitioner's] sworn statements." United States
v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005).
Ineffective Assistance of Counsel During the Guilty Plea
Phase (Ground I)
first claims ineffective assistance of counsel with regard to
the guilty plea he entered on May 17, 2017. Specifically,
Faulkner argues that (1) counsel did not review discovery
with him; (2) counsel did not permit Faulkner to review the
plea agreement in its entirety before entering his guilty
plea; (3) counsel did not discuss the Guidelines calculations
with him; (4) counsel allowed Faulkner to enter into
"effectively an 'open' plea
agreement"while simultaneously waiving his right to
appeal his sentence (Dk. No. 85, at 4); and (5) Faulkner did
not knowingly ...