Boone v. U.S.
| Decision Date | 23 October 1998 |
| Docket Number | No. CIV. 2:96CV372.,No. CRIM. 2:90CR149.,CIV. 2:96CV372.,CRIM. 2:90CR149. |
| Citation | 29 F.Supp.2d 281 |
| Parties | Leroy BOONE, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Eastern District of Virginia |
This matter is before the Court on Petitioner's pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. Both parties have submitted briefs on the relevant issues; thus, the matter is ripe for judicial determination. For the reasons set forth below, Petitioner's motion is DENIED.
Petitioner was indicted by a Federal Grand Jury in the Eastern District of Virginia on November 30, 1990. On March 29, 1991, Petitioner was found guilty by a jury of one count of conspiracy to commit aggravated bank robbery, in violation of 18 U.S.C. § 371, two counts of armed bank robbery, in violation of 18 U.S.C. § 2113(d), and two counts of use of a firearm in commission of a violent crime, in violation of 18 U.S.C. § 924(c)(1). On June 10, 1991, the Court, Judge John A. MacKenzie presiding, sentenced Petitioner to serve a term of 308 months imprisonment for these offenses.
Petitioner appealed his convictions and sentences, and he asserted the following claims: (1) errors in evidentiary rulings, (2) his offense level was improperly enhanced for a leadership role and obstruction of justice, and (3) ineffective assistance of counsel. On June 8, 1993, the United States Court of Appeals for the Fourth Circuit affirmed Petitioner's convictions and sentences.
On December 22, 1993, Petitioner filed his first § 2255 motion to vacate, set aside or correct his sentence. Petitioner alleged in this motion that he had ineffective assistance of counsel and that the government withheld exculpatory evidence. On February 9, 1994, Petitioner's § 2255 motion was dismissed. Petitioner appealed the denial of his motion, and the Fourth Circuit affirmed the denial on September 27, 1994.
On January 23, 1995, Petitioner filed another § 2255 motion to vacate, set aside or correct his sentence. Petitioner made two claims in this motion: (1) a violation of the Agreement on Detainers Act, and (2) ineffective assistance of counsel. This motion was dismissed on February 28, 1995. Petitioner appealed the denial of his motion, and the Fourth Circuit affirmed the denial on October 4, 1995.
On April 8, 1996, Petitioner filed this § 2255 motion to vacate, set aside or correct his sentence. Petitioner made eight claims in this motion: (1) double jeopardy, (2) the Court's failure to dismiss a count, (3) Petitioner received an improper sentencing enhancement for a leadership role, (4) error in allowing 404(b) evidence at trial, (5) ineffective assistance of counsel, (6) the Court should have given Petitioner a downward departure in sentencing because of his diminished capacity, (7) double counting was used in figuring Petitioner's sentence, and (8) Petitioner's criminal history category was incorrectly calculated. On April 25, 1996, Petitioner filed an addendum to his § 2255 motion to vacate, set aside or correct his sentence. Petitioner claimed in this addendum that his convictions for use of a firearm in commission of a violent crime should be overturned under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). On July 31, 1996, the Court dismissed Petitioner's motion without prejudice, ruling that as the motion was successive, authorization from the Fourth Circuit Court of Appeals was required before filing. Petitioner appealed the dismissal, and on February 25, 1998, the Fourth Circuit vacated and remanded for further proceedings, ruling that as Petitioner's filing predated the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, authorization was not required. United States of America v. Leroy Boone, 135 F.3d 770, 1998 WL 77884 (4th Cir.1998) (unpublished). On April 24, 1998, the Court ordered the United States Attorney to file an answer or other pleading in response to Petitioner's § 2255 motion and addendum. The United States Attorney filed an answer to Petitioner's § 2255 motion on May 22, 1998. On June 8, 1998, Petitioner filed a reply to the Government's answer. Accordingly, the Court will proceed with consideration of Petitioner's motion.
On a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence, the Petitioner bears the burden of proving his grounds for collateral attack by a preponderance of the evidence. See Miller v. United States, 261 F.2d 546, 547 (4th Cir.1958); Vanater v. Boles, 377 F.2d 898, 900 (4th Cir.1967); United States v. Bondurant, 689 F.2d 1246, 1251 (5th Cir.1982); Polizzi v. United States, 926 F.2d 1311, 1321 (2nd Cir.1991). Petitioner may attack the sentence imposed on the grounds that: (1) the "sentence was imposed in violation of the Constitution or laws of the United States," (2) "the court was without jurisdiction to impose such sentence," and (3) "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255.
The Court need not hold a hearing in deciding a § 2255 motion if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Id. Accordingly, the Court finds that a hearing is not necessary to properly address Petitioner's § 2255 motion.
Petitioner claims, inter alia, that (1) the Court should have dismissed one of the armed robbery counts because Petitioner withdrew from the robbery, (2) Petitioner received an improper sentencing enhancement for a leadership role, (3) 404(b) evidence was erroneously allowed at trial, (4) the Court should have given Petitioner a downward departure in sentencing because of his diminished capacity, and (5) double counting was used in figuring Petitioner's sentence. These claims are clearly nonconstitutional in nature. See, e.g., United States v. Rowland, 848 F.Supp. 639, 641 (E.D.Va. 1994). Petitioner could have raised each of these claims on direct appeal, but he failed to do so.1
It has long been established that motions under 28 U.S.C. § 2255 "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). "For this reason, nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings." Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); see United States v. Emanuel, 869 F.2d 795, 796 (4th Cir.1989) (). Because Petitioner failed to seek review of these claims on direct appeal, he has waived them. See id. Therefore, the aforementioned nonconstitutional claims must fail under this rationale.
Furthermore, the following errors asserted by Petitioner in his motion were not raised at trial or at sentencing2: (1) the Court's failure to dismiss one of the armed robbery counts because Petitioner withdrew from the robbery, (2) 404(b) evidence was erroneously allowed at trial, (3) the Court should have given Petitioner a downward departure in sentencing because of his diminished capacity, and (4) double counting was used in figuring Petitioner's sentence. Petitioner must meet the two part "cause and actual prejudice" standard in order to obtain relief for these claimed errors. See United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Under this test, to obtain collateral review based upon errors by the trial court to which no contemporaneous objection was made, Petitioner must demonstrate both "cause" excusing his double procedural default and "actual prejudice" resulting from the errors of which he complains. Id. This standard presents a "significantly higher hurdle than would exist on direct appeal." Id. at 166, 102 S.Ct. 1584.
The only evidence that Petitioner offers to demonstrate "cause" for his double procedural default is that these claims were not raised due to ineffective assistance of counsel. See Petitioner's Memorandum of Law at 11. The Supreme Court has clearly stated that attorney error short of ineffective assistance of counsel does not constitute cause for failure to raise an issue prior to § 2255 review. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); see also United States v. Breckenridge, 93 F.3d 132, 134 n. 1 (4th Cir.1996). As discussed, infra, the Court finds Petitioner's ineffective assistance of counsel claim to be without merit. Therefore, Petitioner has not met his burden of proving "cause" for his double procedural default. Because Petitioner did not satisfy the first prong of the "cause and actual prejudice" test, the Court need not address whether there was "actual prejudice" resulting from the errors of which he complains.
Assuming that Petitioner could establish any of the five nonconstitutional claims listed at the beginning of Part III.A, he is not entitled to collateral relief unless the violation of federal law amounts to "`a fundamental defect which inherently results in a complete miscarriage of justice.'" Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). Nonconstitutional errors must present "`exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'" Id. (quoting Hill, 368 U.S. at 428, 82 S.Ct. 468). A review of each of Petitioner's aforementioned grounds for relief reveals that his assertions lack merit. Because Petitioner has not proven any nonconstitutional error, the Court need not consider whether the claimed errors are "fundamental defects" which...
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