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United States v. Hickson

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

December 19, 2019

UNITED STATES OF AMERICA
v.
ELIYAHU NIREL HICKSON, Petitioner.

          MEMORANDUM OPINION

          ROBERT E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE

         Eliyahu Nirel Hickson, a federal inmate proceeding pro se, brings this MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT HER SENTENCE (``§ 2255 Motion," ECF No. 83) . Hickson argues that she is entitled to relief on the following grounds:[1]

Claim One (a) "[Hickson] was charged under [§] 924(c) (1) when [Hickson] did not use, carry, or possess a firearm," "so the charge is incorrect" and "[Hickson] should not have been convicted under [§] 924(c)(1);" and, (b) counsel rendered ineffective assistance[2] when counsel "made [Hickson] sign for the weapon [in the Plea Agreement, ] stating it was the only way to drop the conspiracy charge to get less time." (§ 2255 Mot. 4.)
Claim Two Counsel rendered ineffective assistance when (a) counsel "refused to negotiate a better plea for [Hickson] unless [Hickson] agreed to reveal more co-defendants," and, (b) counsel "came the same day that [the] answer was due to the prosecution regarding going to trial giving [Hickson] no time to consider options" and Hickson "felt unusually pressured by emails from [her] parents to her [counsel] . . . to make a quick decision." (Id.)
Claim Three "[Hickson's] sentencing was [on] 10-27-16, but the Judgment wasn't signed until 12-28-16," and Hickson "should have [gone] before the Court for any changes to the Court's Judgment." (Id.)

         The Government responded, asserting that Hickson's claims lack merit. (ECF No. 101.) Hickson filed a Reply. (ECF No. 102.) For the reasons set forth below, Hickson's § 2255 Motion (ECF No. 83) will be denied.

         I. FACTUAL AND PROCEDURAL HISTORY

         On June 21, 2016, a grand jury charged Hickson with: conspiracy to interfere with interstate commerce by threats and violence, in violation of 18 U.S.C. § 371 (Count One); robbery affecting interstate commerce, in violation of 18 U.S.C. §§ 1951(a) and 2 (Count Two); and, using, carrying, possessing, and brandishing a firearm in furtherance of a crime of violence, to wit, the crime charged in Count Two, in violation of 18 U.S.C. § 924(c)(1) (Count Three). (Superseding Indictment 1-7, ECF No. 18.) On August 4, 2016, the Court granted the Government's motion to amend the Superseding Indictment. (See ECF No. 42.) In the Amended Superseding Indictment, the description of the firearm was stricken as to the charges against Hickson. (Am. Superseding Indictment 3, 6, 7, ECF No. 41.)

         Additionally, on August 4, 2016, Hickson pled guilty to Counts Two and Three of the Amended Superseding Indictment. (Plea Agreement ¶ 1, ECF No. 45.) In the Plea Agreement, Hickson agreed that she was pleading guilty because she was in fact guilty of the charged offenses, "admit[ted] the facts set forth in the statement of facts filed with [the] plea agreement [, ] and agree[d] that those facts establish[ed] guilt of the offense charged beyond a reasonable doubt." (Id. ¶ 2.) Hickson also agreed that, with respect to Count Two, ``[t]he maximum penalties for this offense are a maximum term of twenty years of imprisonment," and with respect to Count Three, ``[t]he maximum penalties for this offense are a mandatory minimum term of seven years imprisonment up to a maximum term of life imprisonment, which sentence must run consecutive to any sentence imposed in Count [Two]." (Id. ¶ 1.) Additionally, Hickson agreed "that the Court has jurisdiction and authority to impose any sentence within the statutory maximum . . . ." (Id. ¶ 4 .)

         Further, the Plea Agreement provided that ``[t]he United States makes no promise or representation concerning what sentence [Hickson would] receive . . . ." (Id.) Hickson agreed that she understood that she was waiving her right to appeal her conviction and "any sentence within the statutory maximum described above (or the manner in which that sentence was determined) . . . ." (Id. ¶ 5.) "Upon execution of [the Plea Agreement] and the Court's acceptance of [Hickson's] plea of guilty, the United States [agreed to] move to dismiss the original indictment, and remaining count [ ] of the superseding indictment, against [Hickson] at the conclusion of sentencing." (Id. ¶ 10.)

         In the accompanying Statement of Facts, Hickson agreed that the following facts were true and correct:

1. On April 11, 2016, defendant HICKSON entered the 7-Eleven store located at 389 E. Williamsburg Road in Henrico, Virginia.
2. The defendant approached the counter.
3. Defendant HICKSON then brandished a firearm, and demanded from the store clerk ``T.S." money from the register, against ``T.S.' s" will by means of actual and threatened force, violence and fear of injury, immediate and future, to ``T.S.' s" person." 4. Store clerk ``T.S." complied with defendant Hickson's demand, and placed the till on the counter, which was taken off the counter, taking approximately $200.00 in U.S. currency.
5. Defendant HICKSON then fled the store on foot.
6. At all relevant times, the identified 7-Eleven convenience store traded in goods obtained through, and sold in, interstate commerce, and the robbery therefore unlawfully obstructed, delayed and affected, interstate commerce.
7. The aforesaid firearm had previously been shipped and transported in interstate and foreign commerce, and meets the definition of a firearm as defined under Title 18, United States Code, Section 921(a)(3) in that it is designed to expel a projectile by means of an explosive.

(Statement of Facts ¶¶ 1-7, ECF No. 44.)[3]

         During the Rule 11 proceedings on August 4, 2016, Hickson confirmed her understanding of the charges and the penalties for the charges. (See, e.g., Aug. 4, 2016 Tr. 8-11, ECF No. 88.) When asked if she "had enough time to discuss these charges [and any possible defenses] with [her] attorney," and to discuss "the terms of the plea agreement," Hickson responded in the affirmative. (Aug. 4, 2016 Tr. 13.) Further, Hickson responded in the affirmative when asked if she "[understood] that [she] [was] saying that [she had] committed these offenses, and [she] [could] never again say that [she] did not commit the offenses." (Aug. 4, 2016 Tr. 10.)

         Hickson agreed that she was "entirely satisfied with the services of [her] attorney," meaning she "believe[d] [her] attorney ha[d] done everything possible to help [her] decide whether or not [she] should plead guilty in this matter." (Aug. 4, 2016 Tr. 13.) When asked if she understood that "[it was her] decision and [her] decision alone about whether [she] should plead guilty and that [she was] the only person who [could] make that decision," Hickson responded in the affirmative. (Aug. 4, 2016 Tr. 13-14.)

         Further, Hickson agreed that she was pleading guilty to Count Two and Count Three because she was "in fact, guilty of [C]ount Two and [C]ount Three." (Aug. 4, 2016 Tr. 14.) When asked if, "other than what's contained in [the Plea Agreement]," "any law enforcement officer, the prosecutor, [Hickson's] attorney, or anyone else [had made her] any promises [that were] not contained within [the Plea Agreement]," Hickson responded: "No." (Aug. 4, 2016 Tr. 14.) The Court explained that Hickson's maximum sentence was twenty years of incarceration for Count Two and life imprisonment for Count Three, and that the exact sentence would depend upon the sentencing guidelines and Hickson's criminal history. (See, e.g., Aug. 4, 2016 Tr. 10-11, 14-15, 21-22.) Hickson agreed that she understood that these potential sentences were predictions not promises and that counsel had discussed potential sentences with her. (Aug. 4, 2016 Tr. 24-26.) The Court accepted Hickson's guilty plea and found it was knowing and voluntary and supported by an independent basis of fact. (Aug. 4, 2016 Tr. 27-28.)

         After Hickson's guilty plea, a Pre-Sentence Investigation Report ("PSR") was prepared. (PSR, ECF No. 60.) With a three-point reduction for acceptance of responsibility (id. ¶¶ 36-37), Hickson's total offense level was 17. (Id. ¶ 38.) Based on Hickson's prior conviction, she received one criminal history point, and her criminal history placed her in Criminal History Category I. (Id. ¶¶ 44-45.) Hickson's sentencing guidelines range was 24 to 30 months of incarceration on Count Two and 84 months of incarceration on Count Three, to be served consecutively. (Id. at 12.)

         During sentencing, neither party noted any objections, additions, or corrections to the PSR. (ECF No. 60-1, at 1; see Oct. 27, 2016 Tr. 9, ECF No. 89.) After considering a host of relevant factors, the Court sentenced Hickson to 24 months of incarceration on Count Two and 84 months of incarceration on Count Three, to be served consecutively, for a total of 108 months of incarceration. (Oct. 27, 2016 Tr. 47; ECF No. 80, at 2.) The Judgment was entered on November 3, 2016 (ECF No. 76), and an Amended Judgment was entered on December 28, 2016 to correct two clerical errors.[4] (ECF No. 80, at 2-3.)

         On March 10, 2017, Hickson filed a Notice of Appeal. (ECF No. 82.) Three days later, on March 13, 2017, the Court received the instant § 2255 Motion. (§ 2255 Mot. 1.) By Memorandum Order entered on April 7, 2017, the Court directed Hickson to show cause why her § 2255 Motion should proceed during the pendency of her direct appeal. (ECF No. 90, at 1.) In response, Hickson submitted a letter to the Court in which she stated: ``I have contacted my appeal lawyer, and sent off a letter myself on April 13th 2017, both stating I would like to withdraw my appeal, and continue to pursue my [§] 2255 [Motion]." (ECF No. 92, at 1.) Thereafter, the United States Court of Appeals for the Fourth Circuit granted Hickson's motion to voluntarily dismiss her appeal pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. (ECF No. 93.)

         II. INEFFECTIVE ASSISTANCE OF COUNSEL

         A. ...


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