United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S
AMENDED § 2255 MOTION [DKT. NO. 37]
DISMISSING CASE WITH PREJUDICE
M. KEELEY, UNITED STATES DISTRICT JUDGE
before the Court is the Amended Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence filed by the
pro se petitioner, Patrick Franklin Andrews
(“Andrews”). For the reasons that follow, the
Court DENIES the amended § 2255 motion
(Dkt. No. 37) and DISMISSES this case
October 2, 2012, a grand jury in the Northern District of
West Virginia returned a two count indictment charging
Andrews and his co-defendant, Kevin Bellinger
(“Bellinger”), with murder by a federal prisoner
serving a life sentence, in violation of 18 U.S.C.
§§ 1111(a), 1118, and 2, and second degree murder,
in violation of 18 U.S.C. §§ 1111(a)-(b), 2, and
7(3) (No. 1:12-CR-100, Dkt. No. 41). Finding good cause, the
Court granted the defendants' motion to sever the cases
on November 26, 2013 (No. 1:12-CR-100, Dkt. No. 192).
Bellinger proceeded to trial and was convicted by a jury on
both counts on June 16, 2014 (No. 1:12-CR-100, Dkt. Nos. 485,
to a written plea agreement, on April 13, 2015, Andrews
pleaded guilty to both counts and joined in a binding
sentencing recommendation of life imprisonment (No.
1:12-CR-100, Dkt. No. 635, 636). Andrews's plea agreement
included a factual stipulation as to the offense and plea in
which Andrews agreed that he and Bellinger had stabbed and
killed the victim, and that Andrews had “acted
unlawfully and with malice aforethought in that he acted
willfully and with callous and wanton disregard of human
life” (No. 1:12-CR-100, Dkt. No. 636 at 3). Andrews
repeatedly affirmed this factual stipulation during his Rule
11 hearing (Dkt. No. 44-2 at 11-12, 21-22, 30-31, 32-33). On
April 15, 2015, the Court sentenced Andrews to concurrent
terms of life imprisonment on each count, to run
consecutively to any sentence previously imposed (No.
1:12-CR-100, Dkt. No. 639).
meanwhile, had appealed his convictions, arguing in part that
the Court had erred when it excluded certain eyewitness
testimony concerning threatening statements the victim
allegedly made to Andrews just prior to his death (No.
1:12-CR-100, Dkt. No. 545). On June 13, 2016, the United
States Court of Appeals for the Fourth Circuit vacated
Bellinger's convictions and remanded the case, finding
that the disputed testimony was not hearsay and was relevant
to Bellinger's state of mind and defense of imperfect
self-defense (No. 1:12-CR-100, Dkt. No. 662). On re-trial,
the eyewitness's testimony was admitted and, on August 9,
2017, Bellinger was again convicted by a jury on both counts
(No. 1:12-CR-100, Dkt Nos. 781, 760).
April 8, 2016, Andrews timely filed a pro se Motion under 28
U.S.C. § 2255 to Vacate, Set Aside or Correct a
Sentence, which he subsequently re-filed on the
court-approved form (Dkt. Nos. 1, 9). He later obtained leave
to amend his motion and filed the instant amended § 2255
motion in November 26, 2018, collaterally attacking his
conviction based on claims that his counsel was
unconstitutionally ineffective and his plea was not voluntary
(Dkt. No. 12, 37).
alleges (1) that he requested but never received grand jury
testimony and medical records for a government witness; (2)
that his counsel did not fully investigate the defense of
self- defense; (3) that his counsel failed to move for
sanctions against the government for the alleged destruction
of exculpatory video surveillance; and (4) that his counsel
failed “to subject the government case to a meaningful
adversarial process” by “repeatedly”
advising Andrews that he could be executed (Dkt. No. 37).
question presented in this case is whether Andrews satisfied
the standard in Strickland v. Washington, 466 U.S.
668 (1984), for establishing ineffective assistance of
counsel in violation of the Sixth Amendment. The matter is
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).
Sixth Amendment to the United States Constitution guarantees
the right to effective assistance of counsel to criminal
defendants. In order to meet the two-prong standard
established by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984), a petitioner alleging a
Sixth Amendment violation regarding ineffective assistance of
counsel must establish both deficient performance and
prejudice, based on counsel's actions or inactions:
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 the showing that counsel's
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
Id. at 687.
order to satisfy Strickland's deficient
performance prong, a petitioner must demonstrate that
counsel's performance was objectively unreasonable.
Id. at 688. The standard for judging attorney
performance is “that of reasonably effective
assistance, considering all the circumstances.”
Id. Further, “judicial scrutiny of
counsel's performance must be highly deferential.”
Id. at 689. A reviewing court must avoid hindsight
and “indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance.” Id.
satisfy Strickland's prejudicial effect prong, a
petitioner “must show there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Id. at 694. “A reasonable probability is a
probability sufficient to undermine the confidence in the
a defendant bears a higher burden when alleging ineffective
assistance of counsel following the entry of a guilty plea,
as is the case here. Hill v. Lockhard, 474 U.S. 52,
59 (1985). A defendant “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.” Id. Absent extraordinary
circumstances, a defendant's statement that his plea ...