United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge
matter is before the Court on Petitioner Tyrone Goodrum's
(“Petitioner's”) pro se [ECF No.
300] motion to vacate, set aside, or correct sentence
(“motion to vacate”) pursuant to 28 U.S.C. §
2255. Also pending is the Government's [ECF No. 312]
motion to dismiss.
motion to vacate alleges six grounds for relief including an
allegation that he instructed his counsel to file a direct
appeal despite having signed an appeal waiver at sentencing.
Petitioner's signed appeal waiver [ECF No. 290] suggests
Petitioner did not want to appeal. However, the Court is
constrained by Petitioner's sworn statement that he
requested that an appeal be filed anyway. See United
States v. Poindexter, 492 F.3d 263, 273 (4th Cir. 2007).
Under the mandates of Poindexter and the unique
circumstances of this case, the Court sees little harm in
forgoing an evidentiary hearing on this issue and granting
Petitioner a belated appeal. Accordingly, for the reasons
explained more fully below, the Court grants Petitioner's
motion to vacate as to ground one only and grants Petitioner
a belated appeal.
History and Factual Background
March 1, 2016, Petitioner was indicted in a one count
indictment for conspiracy to defraud Federal farm assistance
programs in violation of 18 U.S.C. § 371. [ECF No. 2].
On November 8, 2016, Petitioner was found guilty of count one
after a two-day jury trial. Petitioner filed a motion for new
trial, which was denied on April 13, 2017. Petitioner was
sentenced to 46 months in prison on May 9, 2017. At
sentencing, Petitioner signed a waiver of appeal indicating
that he did not want to appeal. See [ECF No. 290].
Judgment was filed on May 10, 2017.
filed the instant pro se motion to vacate on
December 7, 2017.
in federal custody may attack the validity of their sentences
pursuant to 28 U.S.C. § 2255. In order to move the court
to vacate, set aside, or correct a sentence under §
2255, a petitioner must prove that one of the following
occurred: (1) a sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose such a sentence; (3) the
sentence was in excess of the maximum authorized by law; or
(4) the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255(a). Nonconstitutional claims may be
brought pursuant to § 2255, but will not provide a basis
for collateral attack unless the error involves a
“fundamental defect which inherently results in a
complete miscarriage of justice.” United States v.
Addonizio, 442 U.S. 178, 185, 99 S.Ct., 2235, 2240
(1979); United States v. Morrow, 914 F.2d 608, 613
(4th Cir. 1990).
petitioner cannot ordinarily bring a collateral attack on the
basis of issues litigated on direct appeal. United States
v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013) (stating
petitioner “cannot ‘circumvent a proper ruling .
. . on direct appeal by re-raising the same challenge in a
§ 2255 motion'”); United States v.
Linder, 552 F.3d 391, 396 (4th Cir. 2009);
Boeckenhaupt v. United States, 537 F.2d 1182,
1183 (4th Cir.), cert denied, 429 U.S. 863, 97 S.Ct. 169
(1976). An exception occurs where there has been an
intervening change in the law. Davis v. United
States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2302 (1974).
Additionally, where a defendant could have raised a claim on
direct appeal but fails to do so, the claim may only be
raised in a federal habeas proceeding if the defendant can
show both cause for and actual prejudice from the default,
see Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct.
2639, 91 L.Ed.2d 397 (1986), or that he is actually innocent,
see Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct.
2661, 91 L.Ed.2d 434 (1986).
deciding a motion to vacate, the court may summarily dismiss
the motion “[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief.” Rules
Governing Section 2255 Proceedings 4(b); see 28
U.S.C. § 2255(b) (a hearing is not required on a §
2255 motion if the record of the case conclusively shows that
petitioner is entitled to no relief). An evidentiary hearing
“is required when a movant presents a colorable [ ]
claim showing disputed material facts and a credibility
determination is necessary to resolve the issue.”
United States v. Coon, 205 Fed.Appx. 972, 973 (4th
Cir. 2006) (citing United States v. Witherspoon, 231
F.3d 923, 925-27 (4th Cir. 2000)). However, a hearing is not
required unless the claim shows “disputed facts
involving inconsistencies beyond the record.”
United States v. Robinson, 238 Fed.Appx. 954, 955
(4th Cir. 2007). Conclusory allegations contained within
affidavits do not require a hearing. Strong v.
Johnson, 495 F.3d 134, 139-40 (4th Cir. 2007).
“Thus, no hearing is required if the petitioner's
allegations ‘cannot be accepted as true because they
are contradicted by the record, inherently incredible, or
conclusions rather than statement of fact.' ”
Arredondo v. United States, 178 F.3d 778, 782 (6th
Cir. 1999) (quoting Engelen v. United States, 68
F.3d 238, 240 (8th Cir. 1995)).
motion to vacate alleges, among other things, ineffective
assistance of counsel. Claims of ineffective assistance of
counsel are constitutional in nature and therefore are
properly asserted under § 2255. The Sixth Amendment
provides: “In all criminal prosecutions, the accused
shall enjoy the right . . . to have the assistance of counsel
for his defense.” U.S. Constitution. amend VI. The
United States Supreme Court has interpreted the Sixth
Amendment to require that counsel be effective.
Strickland v. Washington, 466 U.S. 668, 686, (1984)
(quoting McMann v. Richardson, 397 U.S. 759, 771,
n.14 (1970)). In order to prevail on an ineffective
assistance claim, petitioner must satisfy the two-prong test
of Strickland that (1) his “counsel's
representation fell below an objective standard of
reasonableness, ” id. at 688; and (2) that
“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 confidence in the outcome. Id. A court
applying the Strickland test may apply either prong
first and does not need to analyze both prongs of the test if
petitioner makes “an insufficient showing on
one.” Id. at 697.
examining the performance of counsel, there is “a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance . . .
.” Id. at 689. A reviewing court must be
highly deferential in scrutinizing counsel's performance
and must filter from its analysis the “distorting
effects of hindsight.” Id.
“deficient performance, ” a court must defer to
counsel's tactical decisions and give counsel the benefit
of a strong presumption of reasonableness. See Id.
at 689. While an attorney has a duty to investigate
reasonable claims and defenses, an attorney's performance
cannot be deemed ineffective or deficient if he fails to
raise a defense which is “very weak”. Smith
v. State of South Carolina, 882 F.2d 895, 898 (4th Cir.
1989); Sistrunk v. Vaughn, 96 F.3d 666, 671 (3rd
Cir. 1996). A habeas petitioner alleging prejudice must show
“that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result
is reliable.” Strickland, 466 U.S. at 687.
That the outcome may have been different but for
counsel's error is not dispositive of the
“prejudice” inquiry. Rather, a court must
determine whether the result of the proceeding was