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Johns v. United States

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

May 10, 2019




         This matter is before the Court on Ronald Lavern Johns, Jr.'s ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No. 57. Petitioner's § 2255 motion advances two grounds for relief, the first alleging ineffective assistance of trial counsel associated with a suppression motion, and the second alleging ineffective assistance of appellate counsel. In addition to Petitioner's § 2255 motion, the Court has before it three unopposed motions filed by Petitioner that are associated with his two § 2255 reply briefs. ECF Nos. 69, 70, 73. Petitioner's unopposed briefing motions are hereby GRANTED; however, even after considering the contents of his reply briefs, Petitioner's § 2255 motion is DENIED in its entirety.


         Petitioner was charged in a four count Indictment with three drug trafficking offenses and possession of a firearm by a convicted felon. ECF No. 13. In April of 2015, defense counsel filed a motion to suppress evidence, advancing two distinct legal challenges: (1) the search of Petitioner's car on the night of his arrest was unlawful as it was based on a traffic offense that was fabricated by police in order to stop Petitioner's vehicle; and (2) search warrant affidavits for two residences linked to Petitioner included materially false information, and/or omitted material information, thereby entitling Petitioner to a "Franks hearing" to determine whether evidence seized during the second search should be suppressed. On June 4, 2015, this Court conducted a suppression hearing at which it heard live testimony from an arresting officer, received several exhibits from defense counsel, and heard detailed argument on both the Franks hearing issue and the validity of the traffic stop. At the conclusion of the hearing, which has now been fully transcribed, the Court denied the motion to suppress. Tr. 66-70, ECF No. 53. Petitioner subsequently entered a conditional guilty plea reserving his right to appeal the denial of his suppression motion. ECF No. 32.

         In September of 2015, Petitioner was sentenced to ninety months imprisonment. ECF No. 45. Petitioner filed a timely notice of appeal, and in August of 2016, the Fourth Circuit affirmed this Court's denial of Petitioner's suppression motion. ECF No. 54. In November of 2017, Petitioner filed the instant § 2255 motion and such motion was fully briefed in July of 2018. Petitioner recently filed a supplemental reply brief, ECF No. 74, and the pending § 2255 motion is ripe for review.


         A federal prisoner, in custody, may collaterally attack his sentence or conviction by moving the district court "to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). To obtain such relief, a petitioner must prove by a preponderance of the evidence that his sentence or conviction was "imposed in violation of the Constitution or laws of the United States," that the district court "was without jurisdiction to impose such sentence," that the sentence exceeds "the maximum authorized by law," or that the sentence or conviction is "otherwise subject to collateral attack." Id.; see Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         A § 2255 motion is, in essence, a statutory federal habeas corpus action that enables a petitioner to collaterally attack his sentence or conviction through the filing of a new proceeding, as contrasted with a direct appeal. United States v. Hadden, 475 F.3d 652, 663 (4th Cir. 2007) . The existence of the right to pursue a collateral attack does not displace a direct appeal as the "usual and customary method of correcting trial errors." United States v. Allgood, 48 F.Supp.2d 554, 558 (E.D. Va. 1999). On the contrary, with limited exceptions, a petitioner advancing new claims asserted for the first time in a § 2255 motion "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). Accordingly, a § 2255 collateral challenge "may not do service for an appeal." Id. at 165.

         A § 2255 petitioner need not, however, overcome such "higher hurdle" to advance a freestanding claim of ineffective assistance of counsel, which is properly asserted for the first time in a § 2255 motion. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (w[I]t is well settled that 'a claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance.'" (quoting United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992))). To obtain relief based on an allegation of ineffective assistance, a petitioner must establish both: (1) that counsel's performance was so deficient that it fell below an objective standard of reasonableness; and (2) that counsel's inadequate performance caused the petitioner prejudice. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

         Satisfying the first prong of Strickland requires a petitioner to establish that ''counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Reviewing courts strongly presume that counsel exercised reasonable professional judgment, and only in "relatively rare situations" will a § 2255 motion establish that," 'in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.'" Tice v. Johnson, 647 F.3d 87, 102 (4th Cir. 2011) (quoting Strickland, 466 U.S. at 690). In reviewing counsel's performance, *every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. Furthermore, a petitioner must go beyond demonstrating that counsel's performance was below average because "effective representation is not synonymous with errorless representation." Springer v. Collins, 586 F.2d 329, 332 (4th Cir. 1978); see Strickland, 466 U.S. at 687. As explained by the Fourth Circuit, the "basic lesson" of Strickland is not just deference but high deference, and attorneys are permitted to "be selective and strategic" in determining how to defend a case. United States v. Mason, 774 F.3d 824, 828, 830 (4th Cir. 2014) (citations omitted).

         The second prong of Strickland requires a petitioner to "affirmatively prove prejudice," which requires a showing 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 693-94. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. If a petitioner fails to prove either prong of the Strickland test such failure is fatal to his § 2255 claim. Moore v. Hardee, 723 F.3d 488, 500 (4th Cir. 2013).


         A. Ineffective Assistance at the Trial Level

         1. Failure to Investigate

         The first subpart of Petitioner's first claim (ineffective assistance at the trial level) alleges that trial counsel was ineffective for "fail[ing] to investigate meritorious legal arguments." ECF No. 58, at 2. Such vague assertion does not include further detail identifying the allegedly forgone legal arguments, and it is therefore denied without further comment. United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) ("Vague and conclusory allegations contained in a § 2255 petition" are insufficient to carry a petitioner's burden under Strickland, and such allegations may therefore "be disposed of without further investigation by the District Court.") (quotation marks and citation omitted).

         2. Failure to engage in "Adversarial Testing"

         The next subpart of Petitioner's first claim contends that "defense counsel fail[ed] to subject the prosecution's case to meaningful adversarial process." ECF No. 58, at 2. To the extent such argument attacks counsel's handling of the cross-examination of the testifying officer, a review of the suppression hearing transcript clearly demonstrates that counsel's performance fell "within the wide range of reasonable professional assistance." United States v. Morris, 917 F.3d 818, 823 (4th Cir. 2019) (explaining that a reviewing court "start[s] with 'a strong presumption that counsel's representation was within the wide range of reasonable professional assistance.'" (quoting Harrington v. Richter, 562 U.S. 86, 104 (2011))). To the extent Petitioner challenges defense counsel's strategic decision to focus his suppression argument on the validity of the initial traffic stop, rather than the validity of the post-stop inventory search, the Court reaches the same conclusion for the reasons outlined below.

         The face of the record reveals that defense counsel's decision not to challenge the lawfulness of the inventory search was an intentional strategic decision as defense counsel objected in open court in order to cut off the testifying officer before he discussed the full chronology of the traffic stop. Tr. 46. The Government responded to such objection by noting that it intended to elicit testimony in support of the validity of the subsequent inventory search, but agreed that the additional testimony was unnecessary if defense counsel was not pursuing such distinct legal challenge. Id. A review of the record reveals that there were valid strategic reasons for defense counsel to take such approach, including: (1) the "well-established exception to the warrant requirement" authorizing inventory searches of vehicles in "lawful custody" of the police following a "reasonable" decision to impound the vehicle, United States v. Brown, 787 F.2d 929, 931-32 (4th Cir. 1986); (2) the undisputed evidence demonstrating that Petitioner was driving after his license was suspended in conjunction with prior DUI offenses, ECF No. 33, at 1; (3) the Virginia statute mandating that Petitioner's car be impounded if he was arrested for driving under DUI suspension, Va. Code § 46.2-301.1(A); (4) the written Virginia Beach Police procedures for conducting inventory searches, Va. Beach Police Dep't General Order 12.12, available at departments/police/Documents/12.12%20Abandoned%20Vehicles%20and%20TowingRedacted.pdf;[1] (5) the written police reports documenting the facially lawful manner in which the inventory search was conducted in this case, ECF Nos. 71-3, 71-4; and (6) the fact that challenging such contemporaneous reports would have elicited live testimony about Petitioner's aggressive reaction and resistance when police attempted to arrest him.[2] As expressly recognized by the Fourth Circuit, defense counsel "can be selective and strategic without risking an ineffective assistance of counsel claim," because a failure to set priorities and focus on what are perceived as the most meritorious claims leads to a ''scattershot" approach that "can be positively detrimental to a client's chances." Mason, 774 F.3d at 830; see United States v. Galloway, No. 2:10cr96, 2014 WL 584047, at *6 (E.D. Va. Feb. 12, 2014) (« [T] he difficulty in overcoming the general presumption that defense counsel provided effective assistance is even greater where counsel's actions required a strategic 'assessment and balancing of perceived benefits against perceived risks'-such strategic decisions must be afforded 'enormous deference.'" (quoting United States v. Terry, 366 F.3d 312, 317 (4th Cir. 2004))).[3]

         In challenging counsel's performance on this issue, Petitioner's initial § 2255 filings focus primarily on the fact that Petitioner's aunt purportedly arrived at the scene of his arrest and asked to take possession of the vehicle Petitioner was driving. Petitioner's filings repeatedly suggest that police were obligated to allow her to do so, that there was no reasonable basis for declining to transfer possession of the car (she was licensed, and the car was operational), and that the failure to transfer possession demonstrates that the police were using the inventory search as a pretext to search for contraband. ECF No. 58, at 3-4. Such arguments, however, overlook the fact that the officers had a statutory right, if not a duty, to impound the vehicle and hold it for 30 days after the decision was made to arrest Petitioner for driving on a suspended license after a DUI offense. Va. Code § 46.2-301.1 (A) . Moreover, even after accepting Petitioner's facts as true, the same Virginia statute, as well as common sense, further illustrate the reasonableness of the officers' decision not to turn the car over to Petitioner's aunt, who was not even a passenger in the car. Notably, the Virginia statute has an express procedure for the "owner or co-owner" to secure release of an impounded vehicle, but makes no reference to a "relative" of an owner taking possession, as questions may arise as to whether the claimed relative is in fact related to the owner and/or whether the owner would authorize the relative to take possession of the vehicle. Va. Code § 46.2-3 01.1(C);[4]cf. UnitedStates v. Beal, 430 F.3d 950, 954 (8th Cir. 2005) (noting that it was appropriate for the police to impound a vehicle and "avoid[] any potential ownership dispute" as to both the vehicle itself and its contents in a case where ''the registered owner had arrived at the scene of the stop and was ready and willing to take the vehicle") (emphasis added).Accordingly, ...

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