United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1]  AND DISMISSING CASE WITH
M. KEELEY UNITED STATES DISTRICT JUDGE
before the Court is the Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence filed by the pro se
petitioner, Ryan Dee Gardner (“Gardner”), in
which he alleges that he entered into an involuntary plea
agreement based on ineffective assistance of counsel. For the
reasons that follow, the Court DENIES
Gardner's § 2255 motion (Dkt. No. 1), and
DISMISSES this case WITH
was the sole defendant named in a one-count Information filed
in this Court on February 11, 2015 (No. 1:15CR22, Dkt. No.
15). Pursuant to a written plea agreement, Gardner waived his
right to have his case presented to a federal grand jury and
pleaded guilty on February 12, 2015, to one count of
distribution of oxycodone, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C) (No. 1:15CR22, Dkt.
Nos. 22; 24). Following the entry of Gardner's guilty
plea, the Probation Officer prepared and disclosed a
presentence report, which recommended that the Court apply a
two-level sentencing enhancement under U.S.S.G. §
2D1.1(b)(1) for the possession of a firearm in connection
with the offense.
Gardner, by counsel, filed an objection to the Probation
Officer's recommendation, he later withdrew that
objection (No. 1:15CR22, Dkt. No. 59 at 5-6). At sentencing,
the Court applied the two-level enhancement under U.S.S.G.
§ 2D1.1(b)(1), and sentenced Gardner to 70 months
imprisonment, the lowest end of the applicable guideline
range, to be followed by 3 years of supervised release (No.
1:15CR22, Dkt. No. 32). Gardner did not appeal his conviction
7, 2016, Gardner filed his pro se Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence, which
he later re-filed on the court-approved form (Dkt. Nos. 1,
5). In his motion, Gardner claims that he is entitled to
relief under § 2255 based on the ineffective assistance
of his counsel during plea negotiations (Dkt. No. 5 at
Specifically, Gardner contends that his counsel was
ineffective for advising him that he would not receive a
firearm enhancement at sentencing. Id. While
Gardner's motion does not specify the precise relief
sought, he requests discovery in the case, an evidentiary
hearing, and the appointment of counsel. Id. at 13;
Dkt. No. 16 at 6.
response, the government argues that Gardner has failed to
satisfy the two-pronged analysis provided by Strickland
v. Washington, 466 U.S. 668, 687 (1984), to establish a
right to an amended sentence or new trial based upon
ineffective assistance of counsel (Dkt. No. 15 at 6-11). In
his reply, Gardner reiterates his contentions about his
attorney's failure to correctly advise him about the
potential sentence (Dkt. No. 16 at 2-5). Accordingly, the
motion is now fully briefed and ripe for decision.
STANDARDS OF REVIEW
Pro Se Pleadings
Court must liberally construe pro se pleadings. Estelle
v. Gamble, 429 U.S. 97, 106 (1976); Loe v.
Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). A pro se
petition is subject to dismissal, however, if the Court
cannot reasonably read the pleadings to state a valid claim
on which the petitioner could prevail. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court
may not construct the petitioner's legal arguments for
him, nor should it “conjure up questions never squarely
presented.” Beaudett v. City of Hampton, 775
F.2d 1274, 1278 (4th Cir. 1985).
§ 2255 Motions
28 U.S.C. § 2255(a) permits federal prisoners, who are
in custody, to assert the right to be released if “the
sentence was imposed in violation of the Constitution or laws
of the United States, ” if “the court was without
jurisdiction to impose such sentence, ” or if
“the sentence was in excess of the maximum authorized
by law, or is otherwise subject to collateral attack.”
A petitioner bears the burden of proving any of these grounds
by a preponderance of the evidence. See Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958).
noted, Gardner claims ineffective assistance of counsel
relating to the advice his attorney allegedly provided prior
to the entry of his guilty plea. Gardner argues that the
erroneous advice provided by his counsel during plea
negotiations prevented him from entering a knowing and
voluntary guilty plea. Specifically, Gardner asserts that his
attorney was “ineffective” because he failed to
correctly advise him about the applicability of a two-level
sentencing enhancement under § 2D1.1(b)(1) (Dkt. Nos. 5
reasons explained below, the Court concludes that, even
assuming that counsel's performance was deficient,
Gardner did not suffer any prejudice as required by the
standard articulated in Strickland v. Washington,
466 U.S. 668 (1984).
Sixth Amendment to the United States Constitution guarantees
criminal defendants the right to effective assistance of
counsel during their criminal proceedings. The Court's
review of Gardner's ineffective assistance of counsel
claim is guided by the conjunctive, two-prong analysis
outlined in Strickland:
A convicted defendant's claim that counsel's
assistance was so defective as to require reversal of a
conviction . . . has two components. First, the defendant
must show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced
the defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.
466 U.S. at 687.
order to satisfy Strickland's deficiency prong,
a petitioner must demonstrate the objective unreasonableness
of his attorney's performance. Id. at 688.
Further, “[j]udicial scrutiny of counsel's
performance must be highly deferential.” Id.
at 689. Thus, a reviewing court with the benefit of hindsight
must not second-guess those decisions of counsel which, given
the totality of the circumstances at the time of trial,
“might be considered sound trial strategy.”
Id. (quoting Michel v. State of La., 350
U.S. 91, 101 (1955)). The Court “must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance” when
evaluating whether counsel's performance was ineffective.
Id. at 689.
order to satisfy Strickland's prejudicial effect
prong, “the defendant must show 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. Further, Strickland makes clear
that either prong of its test for ineffective assistance of
counsel may be analyzed first, and thus, if no prejudice is
shown by a petitioner, a court need not analyze counsel's
performance. Id. at 697; Fields v. Att'y
Gen. of Maryland, 956 F.2d 1290, 1297 (4th Cir. 1992),
cert. denied, 506 U.S. 885 (1992).
Knowing and Voluntary Guilty Plea
criminal defendant's right to effective assistance of
counsel extends to the plea-bargaining process. However,
“[i]t is well-established that a voluntary and
intelligent guilty plea forecloses federal collateral review
of allegations of antecedent constitutional
deprivations.” Fields v. Att'y Gen. Of
Maryland, 956 F.2d 1290, 1294 (4th Cir. 1992); see
also Tollett v. Henderson, 411 U.S. 258, 266 (1973). A
voluntary and intelligent guilty plea amounts to an admission
of the material elements of the charged crime, McCarthy
v. United States, 394 U.S. 459, 466 (1969);
consequently, it generally constitutes a waiver of all claims
relating to non-jurisdictional errors that occurred prior to
the plea. Unite ...