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United States v. Roberts

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

May 14, 2019

UNITED STATES OF AMERICA
v.
DANTA OMAR ROBERTS, Petitioner.

          MEMORANDUM OPINION (DISMISSING CLAIMS 2 AND 3 AND SETTING CLAIM 1 FOR AN EVIDENTIARY HEARING)

          Henry E. Hudson, Senior United States District Judge.

         Danta Omar Roberts ("Petitioner"), a federal inmate proceeding pro se, filed this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Petitioner contends that he is entitled relief on the following grounds:

Claim 1 Petitioner failed to receive the effective assistance of counsel because counsel failed to follow an appeal as directed. (ECF No. 29, at 4.)[1]
Claim 2 Petitioner failed to receive the effective assistance of counsel because counsel failed to advise him that by pleading guilty he and his immediate family would be rendered ineligible to receive federal benefits. (Id. at 5.)
Claim 3 Petitioner failed to receive the effective assistance of counsel because counsel failed to advance a viable challenge to Petitioner's Career Offender enhancement under the Sentencing Guidelines ("USSG"). (Id. at 6.)

         The Government has responded. Petitioner has replied. The matter is ripe for disposition.

         I. PROCEDURAL HISTORY

         On May 5, 2015, a grand jury charged Petitioner with: possession with intent to distribute heroin (Count One); possession with intent to distribute cocaine (Count Two); possession of a firearm and ammunition by a convicted felon (Count Three); and use and carry of a firearm during and in relation to a drug trafficking crime (Count Four). (ECF No. 3, at 1-3.) On July 7, 2015, pursuant to a Plea Agreement, Petitioner pled guilty to Count One. (ECF No. 17, at 1.) Petitioner acknowledged that, had the matter gone to trial, the Government could have proved the facts pertinent to Petitioner's guilt with respect to Count One beyond a reasonable doubt. (ECF No. 18, at 1.) Petitioner further acknowledged that, had the matter gone to trial, the Government could have proved beyond a reasonable doubt the facts necessary to establish Petitioner's guilt with respect to Counts Three and Four. (Id. at 2-3.)

         At sentencing, Petitioner was found to be Career Offender (see ECF No. 22, ¶ 24), with a corresponding sentencing range of 188-235 months. (See Id. at 18.) On October 6, 2015, the Court sentenced Petitioner to 200 months of imprisonment. (ECF No. 26, at 2.)

         II. ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL

         To demonstrate the ineffective assistance of counsel, a defendant must show first that counsel's representation was deficient, and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance facet of Strickland, the defendant 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 prejudice component requires a defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697.

         A. Claim 1

         An attorney's failure to file a requested appeal is per se ineffective assistance of counsel. See Roe v. Flores-Ortega, 528 U.S. 470, 483-86 (2000). This is true even if the defendant has waived his right to appeal. United States v. Poindexter, 492 F.3d 263, 273 (4th Cir. 2007). The United States Court of Appeals for the Fourth Circuit has instructed that "when a defendant brings a § 2255 claim based on his attorney's failure to file a requested notice of appeal, the district court should hold a hearing if it is unclear in the record whether the attorney was so instructed." Id. at 272. That is the case here.

         Petitioner swears that, following sentencing, he instructed his attorney, Mary Maguire, to file an appeal. (ECF No. ...


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