Crawford v. United States

          ORDER

          R. Bryan Harwell Chief United States District Judge.

         This matter is before the Court on Petitioner Antonio Jamal Crawford's (“Petitioner”) pro se [ECF No. 61] 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. 70] motion for summary judgment. For the reasons stated below, the Court grants Respondent's motion for summary judgment, dismisses Petitioner's motion to vacate, and dismisses this case with prejudice.

         Procedural History and Factual Background

         Petitioner was indicted on June 27, 2017, in a three count indictment for violations of 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A), and 21 U.S.C. § 841(b)(1)(D). [ECF No. 18].

         On November 13, 2017, Petitioner signed a plea agreement wherein he agreed to plead guilty to count three of the indictment, which alleged felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). [ECF No. 43]. The plea agreement provided for a stipulated sentence of 72 months in prison pursuant to Fed. R. Crim. P. 11(c)(1)(C). Petitioner entered his guilty plea the same day.

         A presentence investigation report (“PSR”) dated January 16, 2017, was prepared by the U.S. Probation Office. The PSR found that Petitioner's advisory guideline range was 110 to 120 months, based on a total offense level of 25 and criminal history category of VI.

         On April 25, 2018, Petitioner was sentenced to 72 months in prison pursuant to the Rule 11(c)(1)(C) plea agreement. Petitioner did not file a direct appeal.

         Petitioner filed the instant pro se motion to vacate pursuant to 28 U.S.C. § 2255 on March 27, 2019. [ECF No. 61]. The government filed a response to Petitioner's motion to vacate and a motion for summary judgment on April 17, 2019. [ECF No. 70]. Petitioner did not file a response to the government's motion for summary judgment.

         Applicable Law

         Prisoners 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).

         A 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 she is actually innocent, see Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).

         In 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)).

         Petitioner's motion to vacate alleges 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. In the context of a guilty plea, Petitioner must show "that there is a reasonable probability that, but for counsel's errors, she would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

         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 ...