United States District Court, E.D. Virginia, Norfolk Division
REBECCA BEACH SMITH UNITED STATES DISTRICT JUDGE.
matter comes before the court on Petitioner's, Alfreda
Stallion, Motion pursuant to 28 U.S.C. § 2255
("Motion" or "§ 2255 Motion") . ECF
No. 646; see Order of January 30, 2019, ECF No. 657 (noting
the court will proceed on Petitioner's submission
received on September 4, 2018, ECF No. 646, pursuant to her
Response, ECF No. 656).
October 22, 2014, a federal grand jury returned an Indictment
against Petitioner and her co-Defendants, Baffour E. Opoku,
Doretha Selby-Diggs, Lisa Barrett, Barbara Bing, Corey
Etheridge, Jacqueline Harris, Verline Harris, Arlette
Johnson, and Johnny Stallion, in a conspiracy to commit
health care fraud. ECF No. 3. On March 5, 2015, a federal
grand jury returned a Superseding Indictment against
Petitioner and her co-Defendants, Baffour E. Opoku, Barbara
Bing, Verline Harris, Arlette Johnson, and Johnny Stallion.
ECF No. 197. On May 5, 2015, the jury trial commenced for
Petitioner and her co-Defendants Barbara Bing, Verline
Harris, Arlette Johnson, and Johnny Stallion. ECF No. 268. On
June 2, 2015, the jury found Petitioner guilty on Counts
Thirty-Five and Sixty-Seven. ECF No. 314. Count Thirty-Five
involved False Statements Relating to Health Care Matters, in
violation of 18 U.S.C. §§ 1035 and 2, and Count
Sixty-Seven involved Theft of Public Money, in violation of
18 U.S.C. §§ 641 and 2. ECF No. 197.
November 30, 2015, the court sentenced Petitioner on Count
Thirty-Five to sixty (60) months imprisonment, three (3)
years supervised release, a $100.00 special assessment, and
$728.00 in restitution. ECF No. 480. On Count Sixty-Seven,
the court sentenced Petitioner to ninety (90) months
imprisonment, to be served concurrently with Count
Thirty-Five; three (3) years supervised release, to run
concurrently with Count Thirty-Five; a $100.00 special
assessment; and $20, 842.16 in restitution. Id.
Petitioner timely filed an appeal, and on August 31, 2017,
the Fourth Circuit Court of Appeals affirmed Petitioner's
conviction and sentence. United States v. Harris,
706 Fed.Appx. 105 (4th Cir. 2017) (Petitioner, inter
alia, was an appellant in this appeal).
first filed her Motion on August 27, 2018. ECF No. 645. This
Motion was defective as Petitioner did not provide two copies
pursuant to Rule 3 (a) of the Rules Governing Section 2255
Proceedings ("Section 2255 Rules") . On September
4, 2018, the court received a second submission from
Petitioner, which provided the required copies of her Motion
under Rule 3 (a) of the Section 2255 Rules. ECF No. 646. Due
to differences between the two submissions, the court issued
a Striking Order, requiring Petitioner to notify the court
upon which submission she is proceeding. ECF No. 655. By a
letter dated January 24, 2019, ECF No. 656, Petitioner
requested that the court proceed on her second submission,
ECF No. 646, and the court entered an Order on January 30,
2019, finding Petitioner's first submission moot and
indicating that it would proceed on the second submission,
ECF No. 657.
petitioner may challenge a sentence imposed by a federal
court if: (1) the sentence violates the Constitution or laws
of the United States; (2) the sentencing court lacked
jurisdiction to impose the sentence; (3) the sentence exceeds
the statutory maximum; or (4) the sentence "is otherwise
subject to collateral attack." 28 U.S.C. § 2255(a).
A sentence is "otherwise subject to collateral
attack" if a petitioner shows that the proceedings
suffered from "a fundamental defect which inherently
results in a complete miscarriage of justice."
United States v. Addonizio, 442 U.S. 178, 185 (1979)
(quoting Hill v. United States, 368 U.S. 424, 428
bears the burden of proving one of those grounds by a
preponderance of the evidence. See Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958). If she
satisfies that burden, the court may vacate, set aside, or
correct the sentence. 28 U.S.C. § 2255(b). If the
Motion, however, when viewed against the record, shows that
Petitioner is not entitled to relief, the court may summarily
deny the Motion. Raines v. United States, 423 F.2d
526, 529 (4th Cir. 1970).
that could have been "fully and completely addressed on
direct review based on the record" are considered
procedurally defaulted, if raised for the first time during
collateral review. Bousley v. United States, 523
U.S. 614, 622 (1998). In order to obtain collateral relief
based on issues that could have been raised on direct appeal,
but were not, a petitioner must ordinarily show"
'cause' excusing his procedural default,"
and" 'actual prejudice' resulting from the
errors of which he complains." United States v.
Frady, 456 U.S. 152, 167-68 (1982); see also Massaro
v. United States, 538 U.S. 500, 504 (2003)
("[C]laims not raised on direct appeal may not be raised
on collateral review unless the petitioner shows cause and
prejudice."). "The existence of cause for a
procedural default must turn on something external to the
defense, such as the novelty of the claim or a denial of
effective assistance of counsel." United States v.
Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999) (citing
Murray v. Carrier, 477 U.S. 478, 488 (1986)).
Prejudice is shown when the alleged errors worked to a
petitioner's "actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions." Frady, 456 U.S. at 170 (emphasis
the absence of cause for the procedural default and resulting
prejudice, a petitioner may proceed with a collateral attack,
if she is able to show that a fundamental miscarriage of
justice would result were her claim denied. United States
v. Maybeck, 23 F.3d 888, 892 (4th Cir. 1994). To
demonstrate a "miscarriage of justice," a
petitioner "must show actual innocence by clear and
convincing evidence." United States v.
Williams, 396 Fed.Appx. 951, 953 (4th Cir. 2010);
Mikalajunas, 186 F.3d at 493.
statutory sections, 28 U.S.C. § 144 and § 455,
govern the recusal of federal district judges. The level of
bias necessary to require disqualification under §§
144 and 455(a) and (b)(1) is generally considered to be the
same. Liteky v. United States, 510 U.S. 540, 548
144 provides that:
[w]henever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that the
judge before whom the matter is pending has a personal bias
or prejudice either against him or in favor of any adverse
party, such judge shall proceed no further therein.
28 U.S.C. § 144. Section 144 requires that the party
submitting the affidavit must accompany it "by a
certificate of counsel of record stating that it is made in
good faith." Id.; see also In re
Beard, 811 F.2d 818, 827 n.15 (4th Cir. 1987). Here,
although Petitioner did sign her motion, there is no
accompanying certificate of good faith. The procedural
requirements of § 144 are strictly scrutinized for form,
as well as for sufficiency. Thus, the court cannot properly
consider Petitioner's motion under § 144.
455(a), on the other hand, provides that the judge may
disqualify herself sua sponte "in any
proceeding in which h[er] impartiality might reasonably be
questioned." Id. Section 455(b) details a
number of situations in which the judge must recuse herself.
These include circumstances in which the judge "has a
personal bias or prejudice concerning a party."
Id. § 455(b)(1). Although this court will only
consider whether it must recuse itself pursuant to 28 U.S.C.
§ 455, the analysis would similarly apply to a motion
under § 144. See Liteky, 510 U.S. at 548.
Liteky, the Supreme Court explained that the §
455(a) standard was an objective one, thus requiring recusal
whenever "impartiality might reasonably be
questioned." Id. Judicial rulings alone will
rarely constitute a valid reason for recusal; rather they
form the basis for an appeal. Id. at 555. Moreover,
judicial opinions and rulings based on current or prior
proceedings likewise do not constitute a valid basis for
disqualification, "unless they display a deep-seated
favoritism or antagonism that would make fair judgment
claims prosecutorial misconduct violated her Sixth Amendment
right to retain counsel of choice, Fifth Amendment right to
due process, and Fifth Amendment right to indictment by a
Sixth Amendment Right to Retain Counsel of
pretrial restraint of legitimate, untainted assets needed to
retain counsel of choice violates the Sixth Amendment."
Luis v. United States, 136 S.Ct. 1083, 1088 (2016).
Untainted assets are property that "belongs to the
defendant pure and simple," and are not "otherwise
'traceable' to a crime." Id. at 1090.
However, Luis did not announce a new substantive
constitutional rule or watershed rule of criminal procedure
that is retroactive on collateral review. United States
v. Hopkins, 920 F.3d 690, 702-04 (10th Cir. 2019).
Moreover, Luis only pertains to untainted
assets. Luis, 136 S.Ct. at 1088.
Fifth Amendment Right to Due Process
process is violated not only where the prosecution uses
perjured testimony to support its case, but also where it
uses evidence which it knows creates a false impression of a
material fact." Hamric v. Bailey, 386 F.2d 390,
394 (4th Cir. 1967) (citing Miller v. Pate, 386 U.S.
1 (1967)). "[D]ue process requires that the prosecution
refrain from deliberately misrepresenting the truth when
presenting its case." Id. To prevail on a claim
regarding perjured testimony, Petitioner is "required to
demonstrate that: (1) the testimony was false; (2) the
Government knew the testimony was false; and (3) there is a
reasonable probability that ...