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United States v. Rivers

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

September 16, 2019

UNITED STATES OF AMERICA
v.
JAY BERNARD RIVERS, Petitioner.

          MEMORANDUM OPINION

         Jay Bernard Rivers, a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion," ECF No. 68).[1] In his § 2255 Motion, Rivers raises the following claims for relief:[2]

Claim One: "My attorney violated Rivers's Fifth Amendment Due Process Rights. Mr. Bruns did not prepare Mr. Jay Bernard Rivers for trial." (Id. at 4.)
Claim Two: "Counsel was ineffective for failing to object to the error, the sentencing court failed to state its reason for imposing sentence" in violation "of 18 U.S.C. § 3553(c)(2) and his Fifth Amendment due process rights." (Id. at 5.)
Claim Three: Counsel was ineffective during sentencing for "never challenging inaccuracies in the PSI that had bearing on the outcome of the case, never calling witnesses ... never challenging the restitution costs." (Id. at 7.)
Claim Four: "Trial ineffectiveness. If I can have evidentiary hearing I can show you how my lawyer was ineffective assistance in my case. All I'm ask[ing] for is a fair trial. Failure to investigate: Witness. Failure to investigate: Evidence. Failure to investigate. Failure to move for suppression of evidence. Failure to prepare for trial. All I need is a head to show you everything and my decove [sic]." (Id. at 8.)

         The Government has responded, asserting that Rivers's claims should be dismissed because they are vague and conclusory, and even liberally construing his claims, they lack merit. (ECF No. 71.) Rivers filed a Reply (ECF No. 75); however, it too is rambling and conclusory. For the reasons set forth below, Claims One, Three, and Four will be DENIED. The Court will appoint counsel for Rivers with respect to Claim Two and will order further briefing.

         I. PROCEDURAL HISTORY

         On October 6, 2015, a grand jury charged Rivers with conspiracy to commit bank fraud (Count One), bank fraud (Counts Two and Three), two counts of aggravated identity theft (Counts Four and Five), and theft of United States mail (Count Six). (Indictment 1-6, ECF No. 4.) On May 11, 2016, the jury found Rivers guilty of all six counts. (ECF No. 40, at 1-3.) On August 23, 2016, the Court entered judgment against Rivers and sentenced him to a total term of 87 months of imprisonment and ordered $84, 918.47 in restitution. (J. 2, 5-7, ECF No. 258.) Rivers appealed. (ECF No. 56.) On appeal, Rivers argued that "the district court erroneously admitted evidence of his attempted flight from law enforcement" and "the district court erred by refusing to reopen the case after the close of evidence to allow him to testify, after he waived his right to testify." (ECF No. 65, at 2.) The United States Court of Appeals for the Fourth Circuit found no error and affirmed the judgment of the Court. (Id. at 2-3.)

         II. INEFFECTIVE ASSISTANCE OF COUNSEL

         To demonstrate ineffective assistance of counsel, a convicted defendant must first show that counsel's representation was deficient, and, second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong of Strickland, a convicted defendant must overcome the '"strong presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component requires a convicted defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel claims, the Court need not determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697.

         Pursuant to Rule 2(b) of the Rules Governing Section 2255 Proceedings, a petitioner must "state the facts supporting each ground" for relief. Rules Governing Section 2255 Proceedings for the United States District Courts, R. 2(b). As discussed below, Rivers's vague and conclusory claims lack specificity and factual support and fail to establish a claim for relief. See United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (citation omitted) (internal quotation marks omitted) ("[V]ague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court."); see also Sanders v. United States, 373 U.S. 1, 19 (1963) (finding denial of § 2255 motion appropriate where it "stated only bald legal conclusions with no supporting factual allegations"). For this reason alone, Rivers's claims are subject to dismissal.

         Moreover, Rivers's Reply does little to nothing to provide clear factual support for his claims for relief. The Reply is a vague narrative that is not tailored specifically to any of his claims. Rivers lists various "Exhibits" and attempts to describe what each exhibit shows through terse sentence fragments. Rivers appears to fault counsel for various errors he made during the trial and sentencing phase of his criminal proceedings. For example, Rivers suggests repeatedly that counsel never investigated his case and never reviewed the evidence and then provides fragments of information about each exhibit.[3] As discussed below, Rivers fails to demonstrate any deficiency of counsel or resulting prejudice and thus, his claims lack merit.

         A. Trial Related Claims

         In Claim One, Rivers vaguely suggests: "My attorney violated Rivers's Fifth Amendment Due Process Rights. Mr. Bruns did not prepare Mr. Jay Bernard Rivers for trial." (§ 2255 Mot. 4.) Rivers fails to explain, and the Court fails to discern, how counsel violated Rivers's right to due process or how counsel failed to prepare Rivers for trial from these vague allegations. Accordingly, these terse statements without any factual support fail to demonstrate ...


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