United States District Court, W.D. Virginia, Abingdon Division
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for United States; Franklin Dee Rose, Pro Se
P. JONES UNITED STATES DISTRICT JUDGE
defendant, Franklin Dee Rose, proceeding pro se, has filed a
motion seeking relief under 28 U.S.C. § 2255. The United
States has filed a motion to dismiss, to which the movant has
responded. For the reasons stated, I will grant the motion to
dismiss and dismiss the § 2255 motion.
pleading guilty to Count One of the Indictment, Rose was
sentenced by this court on August 30, 2016, to a total term
of 169 months imprisonment, followed by three years of
supervised release. Count One charged Rose with conspiring to
possess with intent to distribute a mixture or substance
containing methamphetamine, in violation of 21 U.S.C.
§§ 841(b)(1)(A), 841(b)(1)(B), 843, and 846. In his
Plea Agreement, Rose waived his right to collaterally attack
the judgment and sentence handed down by the court. Rose did
not appeal his sentence or his conviction.
§ 2255 motion, Rose states three claims for relief. Rose
contends that counsel provided him with ineffective
assistance by: (1) mishandling his presentence report by
leading him to believe his sentencing guidelines would be
lower, by not giving him a chance to object to his
presentence report, and by not being present; and (2) not
representing him to the best of his abilities, by leading him
to believe that his sentencing guidelines would be lower and
by not having all the facts. Mot. to Vacate 5-6, ECF No. 482.
Rose also contends that his sentencing guidelines should have
been lower based on his criminal history. Id. at 7.
state a viable claim for relief under § 2255, a
defendant must prove: (1) that his sentence was
“imposed in violation of the Constitution or laws of
the United States”; (2) that “the court was
without jurisdiction to impose such sentence”; or (3)
that “the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). The movant bears the
burden of proving grounds for a collateral attack by a
preponderance of the evidence. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958).
defendants have a Sixth Amendment right to effective legal
assistance. Strickland v. Washington, 466 U.S. 668,
687 (1984). Ineffective assistance claims, however, are not
lightly granted; “[t]he benchmark for judging any claim
of ineffectiveness must be whether counsel's conduct so
undermined the proper functioning of the adversarial process
that the [proceeding] cannot be relied on as having produced
a just result.” Id. at 686. To that end, a
defendant must satisfy a two-prong analysis showing both that
counsel's performance fell below an objective standard of
reasonableness and that the defendant was prejudiced by
counsel's alleged deficient performance. Id. at
687. When considering the reasonableness prong of
Strickland, courts apply a “strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. at
689; Gray v. Branker, 529 F.3d 220, 228-29 (4th Cir.
performance is judged “on the facts of the particular
case, ” and assessed “from counsel's
perspective at the time.” Strickland, 466 U.S.
at 689, 690. To satisfy the prejudice prong of
Strickland, a defendant must show that there is a
reasonable probability that, but for counsel's
unprofessional error, the outcome of the proceeding would
have been different. Id. at 694. When a defendant
pleads guilty, he must show that there is a reasonable
probability that, but for counsel's errors, he would have
gone to trial instead. Hill v. Lockhart, 474 U.S.
52, 59 (1985). The inquiry is objective - a defendant
“must convince the court that a decision to reject the
plea bargain would have been rational under the
circumstances.” Padilla v. Kentucky, 559 U.S.
356, 372 (2010). If a defendant fails to meet the burden of
proving prejudice, the reviewing court need not even consider
the performance prong. Fields v. Att'y Gen. of
Md., 956 F.2d 1290, 1297 (4th Cir. 1992).
claims of ineffective assistance of counsel do not satisfy
the performance and prejudice prongs of Strickland.
Rose claims that his presentence report was
“mishandled” by counsel, because his sentencing
guidelines were higher than initially anticipated, because he
was not allowed to object to the report, and because his
counsel “was never present.” Mot. to Vacate 5,
ECF No. 482. The inaccurate estimate of Rose's sentence
provided by his counsel does not give Rose a claim of
ineffective assistance. “A miscalculation or erroneous
sentence estimation by defense counsel is not a
constitutionally deficient performance rising to the level of
ineffective assistance of counsel.” United States
v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993).
Additionally, since Rose was informed by the trial court of
the potential maximum sentence, he could not be prejudiced by
any misinformation provided by his counsel. United States
v. Foster, 68 F.3d 86, 88 (4th Cir. 1995). During his
plea hearing, the court informed Rose that he faced a maximum
sentence of 20 years imprisonment. Plea Hr'g Tr. 7, ECF
made several additional claims about his counsel's
performance, each of which is contradicted by the record.
During his sentencing hearing, Rose was asked if he and his
counsel had read and discussed the presentence report, and
Rose responded that they had. Sentencing Hr'g Tr. 2, ECF
No. 492. Later in the hearing, when Rose was asked if he had
anything to say before the sentence was handed down, Rose
declined to offer any further comments. Id. at 10.
When Rose entered his guilty plea, he was asked if he was
fully satisfied with his counsel's representation, and
Rose answered that he was. Plea Hr'g Tr. 6, ECF No. 491.
Rose also stated that he had adequate time to discuss the
Plea Agreement with counsel. Id. Absent
extraordinary circumstances, “allegations in a §
2255 motion that directly contradict the petitioner's
sworn statements made during a properly conducted Rule 11
colloquy are always palpably incredible and patently
frivolous or false.” United States v.
Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (internal
quotation marks omitted). Rose does not offer any evidence to
show that the sworn statements he gave during his Rule 11
colloquy were false.
also claims that he would have gone to trial rather than
pleading guilty if he had known that the sentencing
guidelines given to him by his counsel were inaccurate.
However, Rose does not offer any evidence to show that this
is the case. Rose indicated during his plea hearing that he
was aware that the guidelines were not binding on the court,
and that the court had the ability to impose a sentence that
was more severe than the sentence ...