United States District Court, W.D. Virginia, Big Stone Gap Division
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for United States; Ralph Marlow, Defendant Pro Se.
P. JONES UNITED STATES DISTRICT JUDGE.
Ralph Marlow, proceeding pro se, filed a motion seeking
relief under 28 U.S.C. § 2255. The United States moved
to dismiss the § 2255, and I granted the
government's motion to dismiss. United States v.
Marlow, No. 2:15CR00018-011, 2018 WL 5818358 (W.D. Va.
Nov. 7, 2018). Marlow appealed, and the court of appeals
found that I had “failed to address whether counsel
failed to investigate potential defenses and provided
erroneous advice regarding Marlow's sentencing
exposure.” United States v. Marlow, 771
Fed.Appx. 340, 341 (4th Cir. 2019) (per curiam)
(unpublished). The court of appeals dismissed Marlow's
appeal as interlocutory because I had not adjudicated all the
issues, and it remanded the case to me for further
interest of brevity, I will not restate the procedural
history, facts, and statements of law that I included in my
earlier opinion; they are incorporated here by reference. In
his first ground for relief, Marlow argued that his guilty
plea was not knowing and voluntary because his counsel had
provided him with ineffective assistance. He contended that
his counsel failed to investigate a viable defense before
advising Marlow to plead guilty to violating 18 U.S.C. §
924(c). According to Marlow, the firearms that were found in
his home had been placed there several days before by a woman
whom his counsel neglected to interview. Had counsel
interviewed the woman, she would have corroborated
Marlow's account that the guns had been devised to him in
a will, had not been present in the home for more than a few
days, and had been placed in a closet at Marlow's
direction when Marlow was not home. Marlow argues that he had
not possessed or used the firearms in connection with any
drug trafficking offense and that they were present in the
home merely by coincidence. Marlow states that his counsel
erroneously advised him that he could be convicted of the
§ 924(c) offense simply because he was a felon who
possessed drugs and guns at the same time.
his guilty plea hearing, I explained the elements of the
§ 924(c) charge to Marlow as follows:
Now, count 16, as to Mr. Marlow, charges that on or about and
between January 1, 2014 and November 24, 2015 that Mr. Marlow
knowingly used and carried during and in relation to and
possessed in furtherance of a drug trafficking crime, namely
the crime set forth in count one, a firearm.
If the case went to trial as to that charge, in order to
convict you, Mr. Marlow, that count of, that count 16, the
Government would have to prove beyond a reasonable doubt that
you used or carried a firearm in relation to the drug
trafficking crime as set forth in count one. It means that
you actively employed the firearm in committing that offense.
As an alternative, the Government would be required to prove
beyond a reasonable doubt that you knowingly possessed the
firearm, meaning that you knew that you had a firearm, and
that that possession furthered a drug trafficking crime.
That means that the firearm helped further advance
the drug trafficking crime. Mere possession of a firearm is
not sufficient under this count.
Guilty Plea Hr'g Tr. 15-16, ECF No. 726 (emphasis added).
I then asked Marlow, “do you understand what the
Government would have to prove in order to convict you if
this case went to trial?” Id. at 16. Marlow
responded, “Yes.” Id. I followed up by
asking, “Are you pleading guilty because you are, in
fact, guilty?” to which Marlow replied, “Yes,
asked the Assistant United States Attorney to summarize the
facts the government would be prepared to prove if the case
went to trial. Regarding the § 924(c) charge, the
The Government would also present evidence that on November
24, 2015 a search warrant was executed at Mr. Marlow's
residence in the Eastern District of Tennessee, and that ATF
agents located three firearms, approximately $6, 000 in
United States currency, and seven grams of methamphetamine.
The Government would further present evidence that the money
that was seized and the drugs or methamphetamine were found
in a safe in the defendant's bedroom, and also located in
that bedroom was one of the loaded firearms.
Id. at 17. I asked Marlow whether he contested or
disputed any of the facts presented, and he responded,
“No, sir.” Id. at 18. I asked him
whether he had any questions for me or whether he needed to
talk further with his attorney, and he answered in the
negative. He then pled guilty to Count 16, the § 924(c)
guilty plea colloquy clearly undermines his argument that his
plea was not knowing and voluntary. Regardless of what his
attorney may have told him, I explained the elements of the
offense and what the government would be required to prove,
and he confirmed his understanding. He also stated he did not
dispute the government's recitation of the facts,
including that a loaded weapon was found in the same bedroom
where methamphetamine and cash were located. These statements
at the plea hearing contradict statements Marlow now makes in
his § 2255 motion, affidavit, and response to the
government's Motion to Dismiss. Absent extraordinary
circumstances, “allegations in a § 2255 motion
that directly contradict the petitioner's sworn