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, Ellan Miller (“Miller”). For the
reasons that follow, the Court DENIES the
§ 2255 motion (Dkt. No. 1), and
DISMISSES this case WITH
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
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.
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).
Ineffective Assistance of Counsel
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.
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.
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.
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).
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.
“Lacking” Defense and “Lack of
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).
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.
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
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.”
Failure to File Appeal
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 ...