United States District Court, W.D. Virginia, Abingdon Division
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for United States
Allen Ginn, Pro Se Defendant.
P. Jones, United States District Judge.
defendant, Gary Allen Ginn, a federal inmate proceeding pro
se, has filed a motion seeking relief under 28 U.S.C. §
2255. The United States has filed a motion to dismiss, to
which the movant has responded. For the reasons stated, I
will grant the motion to dismiss and dismiss the § 2255
defendant pled guilty in this court to Count One of the
Indictment on April 10, 2017, pursuant to a written plea
agreement. Count One charged the defendant with conspiring to
possess with the intent to distribute methamphetamine. Ginn
was sentenced on July 13, 2017, to 151 months imprisonment.
§ 2255 motion, the defendant contends that his counsel
was ineffective in three ways. In Ground One, Ginn asserts
that his counsel was ineffective at the guilty plea stage
because he failed to properly advise him as to his rights and
other matters related to pleading guilty. In Ground Two, he
claims his counsel was ineffective for failing to argue for a
reduced sentence due to mitigating circumstances and his drug
addiction. In Ground Three, Ginn asserts that his counsel was
ineffective for failing to secure a sentence reduction due to
his assistance to the government.
state a viable § 2255 claim for relief, a defendant must
prove: (1) that his sentence was “imposed in violation
of the Constitution or laws of the United States”; (2)
that “the court was without jurisdiction to impose such
sentence”; or (3) that “the sentence was in
excess of the maximum authorized by law, or is otherwise
subject to collateral attack.” 28 U.S.C. §
2255(a). The movant bears the burden of proving grounds for a
collateral attack by a preponderance of the evidence.
Miller v. United States, 261 F.2d 546, 547 (4th Cir.
view the facts presented in the pleadings, evidence, and
record in the light most favorable to the petitioner.
United States v. Poindexter, 492 F.3d 263, 267 (4th
Cir. 2007). However, “allegations in a § 2255
motion that directly contradict the petitioner's sworn
statements made during a properly conducted Rule 11 colloquy
are always palpably incredible and patently frivolous or
false.” United States v. Lemaster, 403 F.3d
216, 221 (4th Cir. 2005) (holding that an evidentiary hearing is
not necessary when the movant's allegations, viewed
against the record of the plea hearing, are clearly
incorrect). “[V]ague and conclusory allegations
contained in a § 2255 petition may be disposed of
without further investigation” by the Court. United
States v. Dyess, 730 F.3d 354, 359-60 (4th Cir.
defendants have a Sixth Amendment right to effective legal
assistance. Strickland v. Washington, 466 U.S. 668,
687 (1984). Ineffective assistance claims, however, are not
lightly granted - “[t]he benchmark for judging any
claim of ineffectiveness must be whether counsel's
conduct so undermined the proper functioning of the
adversarial process that the [proceeding] cannot be relied on
as having produced a just result.” Id. at 686.
To that end, a defendant must satisfy a two-prong analysis
showing both that counsel's performance fell below an
objective standard of reasonableness and that the defendant
was prejudiced by counsel's alleged deficient
performance. Id. at 687. To satisfy the prejudice
prong of Strickland, a defendant must show that
there is a reasonable probability that, but for counsel's
unprofessional error, the outcome of the proceeding would
have been different. Id. at 694.
defendant who has pled guilty must demonstrate that, but for
counsel's alleged error, there is a reasonable
probability that he would not have pled guilty and would have
insisted on going to trial. Hill v. Lockhart, 474
U.S. 52, 59 (1985). “A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. In the
guilty plea context, a petitioner must also “convince
the court that a decision to reject the plea bargain would
have been rational under the circumstances.”
Padilla v. Kentucky, 559 U.S. 356, 371-72 (2010).
Ground One of Ginn's 2255 Motion, he asserts that his
counsel erroneously advised him during plea negotiations,
that his counsel “waived” his challenge to the
validity of the underlying search warrant by failing to
“file any pretrial motions to contest the search
warrants in the case, ” that his plea was involuntary,
and that he would have proceeded to trial if he had been
advised of his potential sentence. 2255 Mot. 19, ECF No. 997.
These arguments are all undermined by Ginn's statements
under oath during his guilty plea colloquy. At the beginning
of the hearing, I asked Ginn whether he had had “an
adequate opportunity to read and discuss [his] plea agreement
with [his] lawyer before” he signed it, and he answered
in the affirmative. Guilty Plea Hr'g Tr. 7, ECF No. 1106.
I also asked Ginn whether he was satisfied with his
counsel's advice, and he answered in the affirmative.
prosecutor also advised him on the record, and he
acknowledged, that he was “waiving numerous valuable
constitutional rights” by pleading guilty, and that
these rights were listed in his plea agreement. Id.
at 8. The prosecutor also advised him, and Ginn acknowledged,
that Count One had a maximum sentence of up to twenty years
imprisonment, a maximum fine of $20 million, and at least
three years of supervised release. Finally, the prosecutor
advised Ginn “to make known to the court prior to
sentencing any dissatisfaction or complaint that [he] may
have with [his] attorney's representation.”
Id. at 10. I also advised him that his Guidelines
range of imprisonment would not be determined until the
sentencing hearing and that I had the authority to impose a
sentence that was more or less severe than the Guidelines
range. Ginn indicated his understanding of this advice.
plea agreement, the government agreed to recommend a sentence
within the Guidelines range and Ginn stipulated that his
offense involved at least 500 grams of methamphetamine ice.
Plea Agreement 3-4, ECF No. 318. The government also agreed
to recommend a three-level reduction for acceptance of
responsibility. During the sentencing hearing, I asked
whether Ginn had reviewed and discussed the presentence
investigation report with his counsel and he answered in the
affirmative. Ginn clearly benefited from his plea agreement
and cooperation with the government, as he was sentenced at
the low end of the guidelines and later received an
additional Rule 35 reduction.
includes within his first ground an example of his
counsel's alleged deficiencies. Specifically, his
lawyer's refusal to challenge the underlying search
warrants despite Ginn's belief that law enforcement
erroneously stated that he was a convicted felon and could
not possess a firearm. This subsumed point relies almost
exclusively on legal conclusions without sufficient factual
allegations to determine whether there is a colorable claim.
See Raines v. United States, 423 F.2d 526, 531 (4th
Cir. 1970) (holding that the trial court has discretion to
deny a 2255 motion without a hearing where the petition
states only “legal conclusions with no supporting
factual allegations.”). Moreover, Ginn's criminal
history includes three felony convictions that are sufficient
to establish that Ginn had been a convicted felon and could
not possess a firearm at the time of the search warrants.
Ultimately, Ginn has failed ...