United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
S. DAVIS CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on Corey Holmes's
("Petitioner") Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No.
140. Petitioner's § 2255 Motion contains multiple
claims alleging ineffective assistance of counsel. For the
reasons set forth below, Petitioner's § 2255 motion
FACTUAL AND PROCEDUARL HISTORY
6, 2016, Petitioner was charged with four counts of an
Indictment: Conspiracy to Interfere with Commerce by Means of
Robbery in violation of 18 U.S.C. § 1951(a) (Count One);
Interference with Commerce by Means of Robbery in violation
of 18 U.S.C. §§ 1951(a) and 2 (Counts Three and
Six); and Use of a Firearm During a Crime of Violence in
violation of 18 U.S.C. §§ 924(c) (1) (A) (ii) and 2
(Count Seven) . Ind., ECF No. 11. On July 29, 2016, Stephanie
Johnson was appointed as Petitioner's attorney. Pursuant
to a written plea agreement, Petitioner pled guilty before
Magistrate Judge Miller to Count One of the Indictment on
October 7, 2016. Plea Agreement Hr'g, ECF No. 63; Plea
Agreement, ECF No. 64. Magistrate Judge Miller accepted the
plea, and the matter was continued for sentencing. Order
Accepting Plea of Guilty, ECF No. 66; Sen. Procedures Order,
ECF No. 67.
presentence investigation report
(''PSR") prepared on December 8,
2016, the probation office calculated Petitioner's
advisory guidelines range to be 108 to 135 months
imprisonment based upon an offense level of 29 and a criminal
history category of III. PSR ¶ 86-87, ECF No. 94. On
January 17, 2017, the Government filed a position paper
indicating no objections to the PSR and requesting a sentence
at the "highest end" of the guideline range.
Gov't's Pos. Paper, ECF No. 104. On January 19, 2017,
Petitioner filed a position paper indicating no objections to
the PSR but requesting a downward departure from the
guidelines, based on an overrepresented criminal history, or,
alternatively, a downward variance. Def.'s Pos. Paper,
ECF No. 105.
Petitioner's sentencing hearing on January 23, 2017,
Petitioner's Counsel made an oral motion to continue
sentencing because (1) she had not received all of the video
evidence that the Government wished to present at the
sentencing hearing, (2) the Petitioner may have made a
statement to a victim that Counsel wanted to check, and (3)
there were disagreements about the appropriateness of
forfeiture. Min. Entry, ECF No. 109; March Sen. Hr'g Tr.
4-5, ECF No. 142 (summarizing the January 23 sentencing
hearing). The Court granted the continuance, and the
sentencing hearing was continued until March 31, 2017. Min.
Entry, ECF No. 109.
February 13, 2017, the Government filed a motion for
preliminary order of forfeiture. Forfeiture Mot., ECF No.
120. After (1) reviewing the motion and supporting law and
(2) waiting for, but not receiving, a response or objection
to the order, the Court signed the order of forfeiture on
March 3, 2017. Forfeiture Order, ECF No. 121. On March 29,
2017, Petitioner's Counsel filed a motion to withdraw,
stating that Petitioner wished to represent himself.
Counsel's Mot., ECF No. 123. On that same day, Petitioner
filed a pro se letter motion to dismiss due to void
contracts. Pet.'s Pro Se Mot., ECF No. 124.
hearing on March 31, 2017, the Court began by summarizing the
previous hearing, the order of forfeiture, and the two
motions filed on March 29th. March Sen. Hr'g Tr. 4-8.
After discussing, on the record, each of the March 29th
motions with Petitioner and his Counsel, the Court deemed
both motions withdrawn. Id. at 8-12. The Court
proceeded to hear evidence and argument from counsel and an
allocution from Petitioner. The Court then denied the
Defendant's motion for a downward departure and said it
would consider the downward variance argument in its ultimate
sentence. Id. at 58. Ultimately, the Court sentenced
Petitioner to 121 months imprisonment, which was in the
middle of Petitioner's advisory guideline range.
Id. at 65; Judgment, ECF No. 127.
timely filed the instant § 2255 motion on April 16,
2018. Pet.'s Mot., ECF No. 140. Therein, Petitioner
requests that his sentence be vacated because
Petitioner's Counsel provided ineffective assistance by
failing to (1) challenge jurisdiction, (2) object to a
four-level enhancement applied at sentencing, (3) object to a
three-level enhancement applied at sentencing, and (4)
prepare for sentencing and prepare Petitioner for sentencing.
Id. On June 12, 2018, the Government filed a
response in opposition. Gov't's Resp., ECF No. 143.
Petitioner did not file a reply. Having been fully briefed,
Petitioner's pending motion is ripe for review.
STANDARD OF REVIEW
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 bears the
burden of proving 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. A petitioner must
prove the asserted grounds for relief by a preponderance of
the evidence. Miller v. United States, 261 F.2d 546,
547 (4th Cir. 1958) . Because a § 2255 motion "is
ordinarily presented to the judge who presided at the
original conviction and sentencing . . . the judge's
recollection of the events at issue" may inform the
resolution of the motion. Blackledge v. Allison, 431
U.S. 63, 74 n.4 (1977).
§ 2255 motion is, in essence, a statutory federal habeas
corpus action that collaterally attacks a sentence or
conviction through the filing of a new proceeding, as
contrasted with a direct appeal. United States v.
Hadden, 475 F.3d 652, 661-63 (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).
a petitioner advancing new claims asserted for the first time
in a § 2255 motion must generally "clear a
significantly higher hurdle than would exist on direct
appeal," United States v. Frady, 456 U.S. 152,
166 (1981), a freestanding claim of ineffective assistance of
counsel is properly asserted for the first time in a §
2255 motion, see United States v. King, 119 F.3d
290, 295 (4th Cir. 1997) ("[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))). Such rule exists because the Federal
Rules Governing § 2255 Proceedings permit expansion of
the record, which is generally-unavailable on direct appeal
and often necessary to properly resolve an ineffective
assistance claim. United States v. Baptiste, 596
F.3d 214, 216 n.1 (4th Cir. 2010) (citing Massaro v.
United States, 538 U.S. 500, 504-06, (2003)).
Sixth Amendment to the Constitution of the United States
provides that "the accused shall enjoy the right ... to
have the Assistance of Counsel for his defence." U.S.
Const, amend. VI. The Supreme Court has interpreted the right
to counsel as providing a defendant" 'the right to
the effective assistance of counsel.'"
Strickland v. Washington, 466 U.S. 668, 686 (1984)
(emphasis added) (quoting McMann v. Richardson, 397
U.S. 759, 771 n.14 (1970)). To obtain relief based on an
allegation of ineffective assistance, a petitioner must
establish both that: (1) counsel's performance was so
deficient that it fell below an objective standard of
reasonableness; and (2) counsel's inadequate performance
caused the petitioner prejudice. Id. at 687-88.
"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." United
States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013)
(quotation marks and citation omitted).
evaluating counsel's performance under the first prong of
Strickland, courts "must be highly
deferential." Strickland, 466 U.S. at 689;
see Kimmelman v. Morrison, 477 U.S. 365, 381-82
(1986) (discussing the "highly demanding"
Strickland standard). To establish constitutionally
deficient performance, a petitioner must demonstrate that his
lawyer "made errors so serious that counsel was not
functioning as the 'counsel' guaranteed ... by the
Sixth Amendment." Strickland, 466 U.S. at 687.
Such a showing must go beyond establishing that counsel's
performance was below average, since "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 it is all too easy to challenge an act, omission,
or strategy, once it has proven unsuccessful, "every
effort [must] be made to eliminate the distorting effects of
hindsight." Strickland, 466 U.S. at 689. Courts
should therefore "indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance." Id. 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) . Attorneys are permitted to "be selective and
strategic without risking an ineffective assistance of
counsel claim," as demonstrated by the well-established
and consistent Fourth Circuit precedent holding that the law
does "not penalize attorneys for failing to bring novel
or long-shot contentions." United States v.
Mason, 774 F.3d 824, 828, 830 (4th Cir. 2014) (citations
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 of the two prongs of the
Strickland test, the court need not evaluate the
other prong. Moore v. Hardee, 723 F.3d 488, 500 (4th
motion advances four claims of ineffective assistance of
counsel. Specifically, Petitioner asserts that his Counsel
(1) failed to challenge jurisdiction, (2) failed to object to
a four-level enhancement applied at sentencing, (3) failed to
object to a three-level enhancement applied at sentencing,
and (4) failed to adequately prepare for sentencing and to
prepare Petitioner for sentencing. Pet.'s Mot, ECF No.
140. The Court will address each claim in turn.
Failure to Challenge Jurisdiction
first argues that Counsel provided ineffective assistance by
failing to file''a pretrial motion
challenging federal jurisdiction over the acts alleged in the
indictment." Id. at 5. Petitioner claims
that''[a] successful challenge would have
caused this Court to dismiss the indictment."
Id. Beyond the above statements, Petitioner does not
explain why he believes Counsel had grounds to challenge the
Court's jurisdiction. The Government responds by arguing
that the Court had jurisdiction because the offense to which
Petitioner pled guilty was a Hobbs Act robbery, over which
the Court clearly has jurisdiction, and therefore, it would
have been frivolous for Petitioner's Counsel to file the
motion. Gov't's Resp. 10-11.
was charged with and pled guilty to Conspiracy to Interfere
with Commerce by Means of Robbery in violation of 18 U.S.C.
§ 1951(a), which is a "Hobbs Act" violation.
"The Hobbs Act prohibits robbery or extortion that
'in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce.'" United States v. Tillery, 702
F.3d 170, 174 (4th Cir. 2012) (emphasis added) (quoting 18
U.S.C. § 1951(a)). Thus, w [a] Hobbs Act
violation requires proof of two elements: (1) the underlying
robbery or extortion crime, and (2) an effect on interstate
commerce." Williams, 342 F.3d at 353.
'' '[T]he government need not prove a substantial
effect [on interstate commerce] in each individual
case.'" United States v. Taylor, 754 F.3d
217, 222-23 (4th Cir. 2014) (quoting United States v.
Powell, 693 F.3d 398, 402 (3d Cir. 2012)). Rather,
"the impact on commerce [may be] small, and it may be
shown by proof of probabilities without evidence that any
particular commercial movements were affected."
United States v. Brantley, 777 F.2d 159, 162 (4th
Cir. 1985). "Moreover, the government is not required to
prove that the 'defendant intended to affect commerce or
that the effect on commerce was certain; it is enough that
such an effect was the natural, probable consequence of the
defendant's actions.'" Taylor, 754 F.3d
at 222 (quoting Williams, 342 F.3d at 354) .
"To determine whether a robbery affects commerce, we do
not simply examine the effect of the individual action in
question; it is sufficient that the 'relevant class of
acts' has a measureable [sic] impact on interstate
commerce." Id. (quoting Tillery, 702
F.3d at 174). "Commerce is sufficiently affected under
the Hobbs Act where a robbery depletes the assets of a
business that is engaged in interstate commerce."
Williams, 342 F.3d at 354-55.
courts have jurisdiction over Hobbs Act robberies because an
element of such robbery is that it affected interstate
commerce. United States v. Curry, 744 Fed.Appx. 784,
787 (4th Cir. 2018). As stated, under the Hobbs Act, the
effect on interstate commerce need not be substantial,
rather, the "jurisdictional predicate is satisfied where
the instant offense ...