United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge
Monroe Jackson, a federal inmate proceeding pro se, has moved
to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. The government has filed a motion to dismiss, to
which Jackson has responded, making the matter ripe for
consideration. For the reasons that follow, the
government's motion to dismiss will be granted and
Jackson's motion to vacate will be denied.
October 15, 2015, a grand jury in the Western District of
Virginia returned an indictment against Jackson. Count One of
the indictment charged him with conspiracy to distribute 500
grams or more of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A), and 846. On May 10, 2016, Jackson
entered a plea of guilty to that count. As permitted by Rule
11(c)(1)(C) of the Federal Rules of Criminal Procedure, the
parties agreed that Jackson should receive a term of
imprisonment of 160 months.
appeared for sentencing on October 5, 2017. At that time, the
court accepted the plea agreement. The court imposed a term
of imprisonment of 160 months, as agreed to by the parties
under Rule 11(c)(1)(C). Jackson did not appeal his conviction
October 11, 2018, Jackson moved to vacate his sentence under
28 U.S.C. § 2255. Jackson filed an amended, superseding
§ 2255 motion on March 7, 2019. In the amended motion,
Jackson claims that his attorney was ineffective in failing
to move to dismiss the indictment on various grounds. The
matter is now ripe for review.
2255 sets forth four grounds on which a prisoner in federal
custody may collaterally attack his sentence: (1) "the
sentence was imposed in violation of the Constitution or laws
of the United States"; (2) "the court was without
jurisdiction to impose such sentence"; (3) "the
sentence was in excess of the maximum authorized by
law," or (4) the sentence "is otherwise subject to
collateral attack." 28 U.S.C. § 2255(a). The
petitioner bears the burden of proof by a preponderance of
the evidence. Miller v. United States, 261 F.2d 546,
547 (4th Cir. 1958).
has moved to vacate his sentence on the basis that defense
counsel's failure to challenge the validity of the
indictment violated his Sixth Amendment right to effective
assistance of counsel. Claims of ineffective assistance are
reviewed under the standard enunciated by the Supreme Court
in Strickland v. Washington, 466 U.S. 668 (1984).
"Under Strickland, a movant seeking collateral
relief from his conviction or sentence through an ineffective
assistance claim must show (1) that his counsel's
performance was deficient and (2) that the deficiency
prejudiced his defense." United States v.
Basham, 789 F.3d 358, 371 (4th Cir. 2015) (citing
Strickland, 466 U.S. at 687).
demonstrate deficient performance under Strickland,
the movant must "show that counsel's representation
fell below an objective standard of reasonableness"
measured by "prevailing professional norms." 466
U.S. at 688. In assessing whether counsel's actions were
unconstitutionally deficient, the court "must indulge a
strong presumption that counsel's conduct [fell] within
the wide range of reasonable professional assistance."
Id. at 689. "The Strickland standard
is difficult to satisfy, in that the 'Sixth Amendment
guarantees reasonable competence, not perfect advocacy judged
with the benefit of hindsight.'" Basham,
789 F.3d at 371 (quoting Yarborough v. Gentry. 540
U.S. 1, 8 (2003)); see also Strickland, 466 U.S. at
689 (emphasizing that a "fair assessment of attorney
performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
prejudice prong of the Strickland test inquires into
whether the alleged error by counsel affected the judgment.
See 466 U.S. at 691. The movant "must show that there is
a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 694. "A
reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id.
claims of ineffective assistance are based on defense
counsel's failure to challenge the validity of the
indictment. In particular, Jackson contends that his attorney
should have sought dismissal of the indictment on the
following grounds: (1) he was denied the opportunity to
challenge the grand jury array or any individual grand
jurors; (2) at least 12 grand jurors did not concur in the
indictment; and (3) these alleged defects deprived the court
of subject matter jurisdiction. For the following reasons,
the court concludes that Jackson's claims do not satisfy
Strickland's stringent requirements.
first contends that he "did not have the opportunity to
challenge the grand jury array . . . and individual grand
jurors prior to the grand jury being seated," and that
counsel should have moved to dismiss the indictment on that
basis. Am. § 2255 Mot. 3, Dkt. No. 95. Under the Federal
Rules of Criminal Procedure, a defendant "may challenge
the grand jury on the ground that it was not lawfully drawn,
summoned, or selected, and may challenge an individual juror
on the ground that the jury is not legally qualified."
Fed. R. Crim. P. 6(b)(1). However, Jackson does not allege,
much less offer any evidence to suggest, that the grand jury
in his case was unlawfully drawn, summoned, or selected, or
that any particular grand juror was not legally qualified to
serve. Consequently, Jackson is unable to establish that his
attorney was ineffective in failing to raise the challenges
permitted by Rule 6(b)(1), or in failing to seek dismissal of
the indictment on such grounds.
also contends that his attorney should have moved to dismiss
the indictment on the basis that at least twelve grand jurors
did not concur in the indictment. See Fed. R. Crim.
P. 6(f) ("A grand jury may indict only if at least 12
jurors concur."). This claim is foreclosed by the record
filed with the Clerk. See Fed. R. Crim. P. 6(b) ("The
foreperson . . . will record the number of jurors concurring
in every indictment and will file the record with the clerk,
but the record may not be made public unless the court so
orders."). The court has reviewed the relevant record at
the request of the government and confirmed that more than
twelve grand jurors concurred in the defendant's