United States District Court, S.D. West Virginia, Beckley Division
BRYAN T. CROSS, Movant,
UNITED STATES OF AMERICA, Respondent.
PROPOSED FINDINGS AND RECOMMENDATIONS
A. EIFERT, UNITED STATES MAGISTRATE JUDGE.
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).
Factual and Procedural Background
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,
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).
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. (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).
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).
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).
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).
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.
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).
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; ...