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Cross v. United States

United States District Court, S.D. West Virginia, Beckley Division

March 2, 2018

BRYAN T. CROSS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          CHERYL A. EIFERT, UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is Movant Bryan T. Cross's pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255, (ECF No. 18). This matter is assigned to the Honorable Irene C. Berger, United States District Judge, and by standing order has been referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations for disposition (“PF&R”) pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, the undersigned respectfully RECOMMENDS that Movant's motion be denied and this matter be dismissed, with prejudice, and removed from the docket of the Court. Given that the undersigned conclusively FINDS that Movant is not entitled to the relief requested, an evidentiary hearing is not warranted. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         I. Factual and Procedural Background

         A federal information charged Movant with distributing cocaine to a confidential informant during a controlled drug purchase arranged by law enforcement. (ECF Nos. 1, 7, 14, 29).[1] Movant entered into a plea agreement in which he waived his right to be charged by indictment and pleaded guilty to the single-count information. (ECF No. 7). In exchange for his guilty plea, the pending five-count indictment charging Movant with distribution of and possession with intent to distribute cocaine base would be dismissed. (Id.). The plea agreement specifically advised Movant that he faced imprisonment up to 240 months. (Id. at 2). A presentence investigation (“PSI”) report was prepared by a United States Probation Officer. The report stated that during the period that Movant was under investigation, Movant sold cocaine from his residence on September 23 and 28, 2014; sold cocaine base from his residence on September 18 and 25, 2014; and 263.582 grams of cocaine base was seized from his residence upon execution of a search warrant on October 6, 2014. (ECF No. 14 at 4-6). At sentencing, Movant stated that he did not object to any facts contained in the report and was completely satisfied with the legal representation that he received in his case. (ECF No. 26 at 13-14). In August 2015, the Court sentenced Movant to 151 months of imprisonment followed by three years of supervised release. (Id. at 24-25).

         Movant did not appeal his conviction or sentence. However, in June 2016, Movant filed the instant motion under § 2255, arguing that his trial counsel rendered ineffective assistance by not ordering further laboratory testing of the drugs that were identified as cocaine base.[2] (ECF No. 18 at 4-5). He insists that he sold only cocaine and that he urged his counsel to have the substances retested. (Id.). Movant further argues that his counsel was not qualified to handle Movant's criminal case, because counsel specialized in personal injury cases and only won one criminal case in ten years. (Id. at 5).

         In opposition to Movant's motion, Respondent relies primarily on the sworn affidavit submitted by Movant's trial counsel in this matter. (ECF Nos. 29, 30). Respondent states that Movant's counsel made a tactical legal decision not to challenge the laboratory results, because such a challenge could have jeopardized Movant's acceptance of responsibility credit. Respondent cites to counsel's affidavit, detailing the investigation that counsel performed and explaining the reasoning for his conclusion that retesting the evidence would have been frivolous and might even have been adverse to Movant. (ECF No. 30 at 9-11). Moreover, Respondent argues that Movant's allegations regarding his counsel's competence are unavailing because counsel's actions in Movant's case clearly demonstrated his competence; also, counsel had been appointed a Criminal Justice Act (“CJA”) panel attorney since 1992 with a long history of representing criminal defendants in state and federal actions. (Id. at 11-12).

         II. Discussion

         When a movant alleges ineffective assistance of counsel under § 2255, the movant claims a violation of rights guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 680 (1984). Under Strickland, a criminal defendant can prove ineffective assistance of counsel by meeting the requirements of a two-pronged test. Id. at 687. The defendant carries the burden of satisfying both prongs of the test, and “a failure of proof on either prong ends the matter.” United States v. Roane, 378 F.3d 382, 404 (4th Cir. 1994).

         First, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88. When evaluating counsel's performance under the first prong of Strickland, “[j]udicial scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 689. Thus, the “court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ... [and] that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks omitted). The inquiry under Strickland is “whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 88 (2011).

         Second, the defendant must show that he was actually prejudiced by the ineffective assistance of counsel. Strickland, 466 U.S. at 687. To establish actual prejudice from counsel's deficient performance, “[p]etitioner must show that ‘counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the Sixth Amendment.'” DeCastro v. Branker, 642 F.3d 442, 450 (4th Cir. 2011) (citing Harrington, 131 S.Ct. at 787)); see also, Strickland, 466 U.S. at 687. It is insufficient for the defendant “to show that the errors had some conceivable effect on the outcome of the proceeding, ” because “[v]irtually every act or omission of counsel would meet that test.” Strickland, 466 U.S. at 693. Rather, “[t]he defendant must 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.” Id. at 694.

         In the context of a guilty plea, the movant carries a heavy burden under § 2255. By entering a guilty plea, the criminal defendant “has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). Therefore, a guilty plea “represents a break in the chain of events which has preceded it in the criminal process.” Id. Statements made during a hearing to accept a guilty plea are afforded a strong presumption of veracity and subsequent attacks that contradict these statements may generally be dismissed as frivolous. U.S. v. Lemaster, 403 F.3d 216, 221-222 (4th Cir. 2005). As the Fourth Circuit explained:

[A] defendant's solemn declarations in open court ... carry a strong presumption of verity ... because courts must be able to rely on the defendant's statements made under oath during a properly conducted Rule 11 plea colloquy. ... Thus, in the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the sworn statements.

Id. Consequently, a criminal defendant is precluded from raising alleged constitutional deprivations that occurred prior to pleading guilty and “may only attack the voluntary and intelligent character of the guilty plea” by demonstrating that his counsel's performance was inadequate under the Sixth Amendment. Tollett v. Henderson, 411 U.S. at 267; see, also, Fields v. Attorney General of State of Md., 956 F.2d 1290, 1296 (4th Cir. 1992)(“A guilty plea does not bar collateral review of allegations of ineffective assistance of counsel in so far as the alleged ineffectiveness bears on the voluntariness of the guilty plea.”). In other words, the movant under § 2255 must not only rebut the presumption that counsel performed within the wide range of reasonable professional competence, but must also demonstrate that “there is a reasonable probability that, but for counsel's errors, [movant] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

         Here, Movant claims that his counsel was ineffective because he did not have evidence identified as cocaine base retested despite Movant's insistence that he only possessed and sold cocaine. (ECF No. 18 at 4-5). However, the record demonstrates that counsel made an informed, strategic decision not to solicit further testing, and this decision was reasonable under the circumstances. Movant was charged with selling cocaine to a confidential informant during a controlled drug purchase. (ECF No. 1). The government disclosed to Movant's counsel audio/video footage of four purported controlled drug purchases from Movant on September 18, 23, 25, and 29, 2014; ...


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