United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE
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:
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 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
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."
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.
FACTUAL AND PROCEDURAL HISTORY
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.)
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 .)
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.)
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,
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.
of Facts ¶¶ 1-7, ECF No. 44.)
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.)
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.)
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.)
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.)
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. (ECF No. 80, at 2-3.)
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.)
INEFFECTIVE ASSISTANCE OF COUNSEL