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Miller v. United States

United States District Court, N.D. West Virginia

July 3, 2019

ELLAN MILLER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION [DKT. NO. 1] [1] AND DISMISSING CASE WITH PREJUDICE

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

         Pending 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, Ellan Miller (“Miller”). For the reasons that follow, the Court DENIES the § 2255 motion (Dkt. No. 1), and DISMISSES this case WITH PREJUDICE.

         I. BACKGROUND

         On January 21, 2015, Miller pleaded guilty before former United States Magistrate Judge John S. Kaull to one count of possession of pseudoephedrine to be used in the manufacturing of methamphetamine, in violation of 21 U.S.C. § 841(c)(2) (Case No. 1:14CR86, Dkt. No. 92). On June 17, 2015, the Court sentenced Miller to 41 months of imprisonment, the lowest end of the applicable guideline range, followed by 3 years of supervised release (Case No. 1:14CR86, Dkt. No. 158). Miller did not directly appeal her conviction or sentence.

         On June 20, 2016, Miller timely filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct a Sentence based on the ineffective assistance of her counsel, the involuntary nature of her guilty plea, and the “[r]etroactivity of laws to be applied” to her sentence. In its response, the government argues that Miller has failed to satisfy the two-pronged analysis provided by Strickland v. Washington, 466 U.S. 668, 687 (1984), to establish ineffective assistance of counsel. It further argues that the Court did not err in finding Miller's guilty plea to be knowing and voluntary, and that Miller is not entitled to relief based upon the purported retroactivity of any applicable sentencing guideline or case law. Id. at 6-10. In her reply, Miller reiterates her contentions about the involuntary nature of her guilty plea and her attorney's constitutionally deficient performance.

         II. STANDARDS OF REVIEW

         A. Pro Se Pleadings

         The 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).

         B. § 2255 Motions

         Title 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).

         III. DISCUSSION

         A. Ineffective Assistance of Counsel

         Miller first asserts that her counsel was ineffective due to a “lacking” defense and “lack of explaination [sic]” (Dkt. No. 6 at 5). She further claims her attorney was ineffective because he failed to file an appeal on her behalf. Id. In response, the government argues that Miller has not met her burden of proof under the standard set forth in Strickland v. Washington, 466 U.S. 668, 692 (1984), as to her “lack” of defense and “lack of explanation” claims (Dkt. No. 14 at 3-5). It further argues that Miller has not alleged facts sufficient to support a claim of ineffective assistance of counsel based on her attorney's alleged failure to file an appeal. Id. at 5.

         1. Applicable Law

         The 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 Miller'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.

         In 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 having 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.

         In 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. A petitioner who alleges ineffective assistance of counsel following a guilty plea has an even higher burden: he “must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988), cert. denied, 488 U.S. 843 (1988).

         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).

         2. “Lacking” Defense and “Lack of Explanation”

         Following a careful review of Miller's motion and the record before it, the Court concludes that Miller has failed to satisfy her burden under Strickland to support a claim of ineffective assistance of counsel based on an alleged “lack” of defense or “lack of explanation” (Dkt. No. 6 at 5). Despite Miller's general contention that she “was not defended at all” by her counsel, she fails to point to any objective evidence of prejudice in support of her claim (Dkt. No. 16 at 1).

         On January 21, 2015, Miller, with her counsel, appeared for a change of plea hearing before Magistrate Judge Kaull. During that hearing, Miller testified under oath about the representation provided by her attorney. At no point during the lengthy plea colloquy did Miller express anything but satisfaction with that representation. To the contrary, Miller testified that she was “completely satisfied” with the representation of her counsel at the time she entered her guilty plea:

THE COURT: Are you completely satisfied with the legal assistance, counseling, advice and actions that [your attorney] has provided to you in his representation?
THE DEFENDANT: Yes, sir.
THE COURT: Is there anything [your attorney] should have done and did not do?
THE DEFENDANT: No, sir.
THE COURT: Is there anything [your attorney] did do that you believe he should not have done?
THE DEFENDANT: No, sir.
THE COURT: Do you know of any ineffective assistance of counsel as you sit here today?
THE DEFENDANT: No, sir.

Dkt. No. 15-2 at 29, 46.[2]

         Miller further testified that she had met or otherwise spoken with her attorney “several times, ” that he had answered all questions to her satisfaction, and that together they had reviewed the evidence in the case. Id. at 24. Miller also testified that she and her attorney had considered possible defenses to the charges in the indictment and had “discussed all options.” Id. at 24. When Magistrate Judge Kaull asked why she was not using any defense, Miller responded, “Because I'm guilty.” Id.

         Thus, neither Miller's motion nor the record in the case reveals any objective evidence showing a reasonable probability that, but for her attorney's generally alleged deficiency, “[s]he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. Because the vague, self-serving statements set forth in Miller's motion directly contradict her sworn statements at her plea hearing, the Court concludes that Miller has failed to establish, by a preponderance of the evidence, her claims of ineffective assistance of counsel based on an alleged “lack” of defense or “lack of explanation.”

         3. Failure to File Appeal

         Under Strickland, a defendant who claims ineffective assistance of counsel must prove “that counsel's representation fell below an objective standard of reasonableness, ” and that any such deficiency was “prejudicial to the defense, ” 466 U.S. at 687-88, 692. “[P]rejudice is presumed” in “certain Sixth Amendment contexts, ” id. at 692, such as “when counsel's constitutionally deficient performance ...


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