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Stallion v. United States

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

August 5, 2019

ALFREDA STALLION, Defendant/Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          REBECCA BEACH SMITH UNITED STATES DISTRICT JUDGE.

         This 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).

         I. PROCEDURAL HISTORY

         On 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.[1] 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.

         On 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).

         Petitioner first filed her Motion on August 27, 2018.[2] 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.

         II. LEGAL STANDARDS

         A. Habeas Corpus

         A 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 (1962)).

         Petitioner 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).

         B. Procedural Default

         Claims 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 omitted).

         Even in 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.

         C. Recusal

         Two 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 (1994).

         Section 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.

         Section 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.

         In 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 impossible." Id.

         D. Prosecutorial Misconduct

         Petitioner 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 grand jury.

         1. Sixth Amendment Right to Retain Counsel of Choice

         "[T]he 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.

         2. Fifth Amendment Right to Due Process

         "[D]ue 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 ...


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