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Holmes v. United States

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

May 21, 2019

COREY HOLMES, Petitioner,



         This 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 is DENIED.


         On July 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.

         In the 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.

         At 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.

         On 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.

         At the 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.

         Petitioner 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.


         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 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).

         A § 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).

         Although 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)).

         The 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).

         When 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 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 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 Cir. 2013).


         Petitioner's 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.

         A. Failure to Challenge Jurisdiction

         Petitioner 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.

         Petitioner 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.

         Federal 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 ...

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