Gregory v. U.S.

Decision Date04 August 2000
Docket NumberNo. CR. A. 4:96CR22.,No. CIV. A. 4:99CV136.,CIV. A. 4:99CV136.,CR. A. 4:96CR22.
Citation109 F.Supp.2d 441
CourtU.S. District Court — Eastern District of Virginia
PartiesCourtney Floyd GREGORY, Petitioner, v. UNITED STATES of America, Respondent.

Courtney Floyd Gregory, Lewisburg, PA, pro se.

Michael Smythers, U.S. Attorney's Office, Norfolk, VA, for defendant.

MEMORANDUM OPINION AND ORDER

JACKSON, District Judge.

This matter comes before the Court on Petitioner's pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence previously imposed. For the reasons set forth below, Petitioner's motion is DENIED.

I. FACTUAL AND PROCEDURAL HISTORY

Petitioner Courtney Gregory and three co-defendants were indicted by a federal grand jury on April 29, 1996. Petitioner pleaded not guilty and, on September 9, 1996, a jury found him guilty of one count of conspiracy to distribute marijuana, cocaine, and cocaine base in violation of 21 U.S.C. § 846. On January 21, 1997, Petitioner was sentenced to life imprisonment, five years of supervised release, and a $100 special assessment.

Petitioner appealed, and on June 23, 1998, the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") affirmed Petitioner's conviction and sentence in United States v. Gregory, 151 F.3d 1030, 1998 WL 390176 (4th Cir. June 23, 1998) (unpublished), cert. denied, 525 U.S. 974, 119 S.Ct. 429, 142 L.Ed.2d 349 (1998). The United States Supreme Court denied Petitioner's Petition for Certiorari by Order filed November 2, 1998.

Petitioner filed the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 on November 9, 1999.1 He claims that (1) his attorneys' failure to allow him to testify on his own behalf constitutes ineffective assistance of counsel; (2) his attorneys were ineffective for failing to investigate his case and for failing to file a motion to suppress; (3) since the general verdict failed to identify the jury's finding as to the object of the conspiracy, his conviction must be vacated and remanded for a new trial; in the alternative, he must be resentenced based on the drug carrying the lowest penalty; and (4) his attorneys were ineffective for failing to request a special verdict and for failing to raise plain error — the absence of a special verdict — on direct appeal.2 The United States Attorney filed a response to Petitioner's § 2255 motion on January 31 2000, and Petitioner filed his "Traverse" to the Government's Response on February 14, 2000. The matter is now ripe for judicial decision.

II. LEGAL STANDARDS

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 Vanater v. Boles, 377 F.2d 898, 900 (4th Cir.1967); Miller v. United States, 261 F.2d 546, 547 (4th Cir.1958). A petitioner may attack the sentence imposed on the grounds that (1) it "was imposed in violation of the Constitution or laws of the United States;" (2) "the court was without jurisdiction to impose" it; or (3) it "was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255.

When the errors asserted in a § 2255 motion were not raised at sentencing or on direct appeal, a petitioner must ordinarily satisfy the requirements of a two-part "cause and actual prejudice" test to obtain relief. See United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Under that test, "[t]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) `cause' excusing his double procedural default, and (2) `actual prejudice' resulting from the errors of which he complains." Id.; accord United States v. Maybeck, 23 F.3d 888, 890 n. 1 (4th Cir. 1994). This standard presents "a significantly higher hurdle than would exist on direct appeal." Frady, 456 U.S. at 166, 102 S.Ct. 1584.

However, ineffective assistance of counsel claims more properly are made by way of a collateral challenge pursuant to § 2255 than on direct appeal. See United States v. Fisher, 477 F.2d 300, 302 (4th Cir.1973). Ineffective assistance of counsel constitutes "cause" for failure to raise an issue prior to § 2255 review. See United States v. Breckenridge, 93 F.3d 132, 134 n. 1 (4th Cir.1996). Thus, Petitioner's claims of ineffective assistance of counsel must be evaluated according to the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To prove his claims of ineffective assistance of counsel, Petitioner must first show that he was deprived of "reasonably effective assistance" because counsel's representation "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Second, Petitioner must show that counsel's "deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. 2052. To demonstrate prejudice, Petitioner must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. Failure to satisfy either requirement defeats the ineffective assistance claim. See id. at 700, 104 S.Ct. 2052.

A pro se petitioner is entitled to have his petition and asserted issues construed liberally. Pro se petitioners are held to a less stringent standard than attorneys drafting such complaints. See Gordon v. Leeke, 574 F.2d 1147 (4th Cir.1978). Accordingly, the Court has interpreted the allegations and facts as reasonably as possible.

In deciding a § 2255 motion, the Court need not hold a hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. If the motion is brought before the sentencing judge, the judge may rely on recollections of previous events to dismiss it. See Blackledge v. Allison, 431 U.S. 63, 74 n. 4, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). The Court has thoroughly reviewed the record in this case, and finds that a hearing is not necessary to fully address Petitioner's § 2255 motion.

III. DISCUSSION
A. Petitioner's Claim of Ineffective Assistance of Counsel for Failure to Allow him to Testify on his Own Behalf

Petitioner claims that his attorneys rendered ineffective assistance by refusing to allow him to testify on his own behalf at trial. In support of this claim, Petitioner has submitted an affidavit declaring that he informed his trial attorneys that he wanted to testify, that he discussed his intended testimony with his attorneys, and that, during trial, his attorneys assured him that they would call him to testify. However, they ultimately failed to call him as a witness. The Government has submitted an opposing affidavit in which Petitioner's trial attorney, Joseph DuRant, avers that he and his co-counsel, Timothy Clancy, spoke with Petitioner about testifying and discussed potential testimony, but that they did not advise him to testify. He further states that Petitioner did not insist on testifying and that they did not refuse to allow him to testify.

A defendant in a criminal trial has a constitutional right to testify on his own behalf. See Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); United States v. McMeans, 927 F.2d 162, 163 (4th Cir.1991); see also 18 U.S.C. § 3481 (codifying a defendant's right to testify). Although "it is the defendant who retains the ultimate authority to decide whether or not to testify," McMeans, 927 F.2d at 163, it is the attorney's obligation to ensure that the defendant is informed of the right to testify. See Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998). A claim that counsel interfered with that right implicates the right to effective assistance of counsel. Thus, any such claim must be evaluated according to the two-prong test set forth in Strickland v. Washington. See id.

Petitioner has failed to show prejudice resulting from the alleged deficient performance of his attorneys. Thus, even assuming that his attorneys refused to allow him to testify and that this refusal rendered them deficient under the first prong of the Strickland test, Petitioner's claim fails. The second prong of Strickland requires Petitioner to 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, 104 S.Ct. 2052. This requires Petitioner to demonstrate that there is a reasonable probability, "sufficient to undermine confidence in the outcome," that, absent the error, the result of the trial would have been different. Merely suggesting that counsel's alleged refusal to allow him to testify may conceivably have had an effect on the trial's outcome is insufficient. See id. at 693-94, 104 S.Ct. 2052. However, Petitioner has failed to allege any prejudice resulting from his counsel's alleged deficiency. He states only that "there remains a reasonable probability had the petitioner been allowed to testify the outcome would have been different." Mem. Supp. Pet.'s § 2255, at 5. He fails to demonstrate how his testimony would have affected the outcome of his trial or even to indicate what his testimony would have been had he taken the stand. This is insufficient to satisfy the Strickland prejudice requirement. See Foster v. Delo, 39 F.3d 873, 877 (8th Cir.1994); see also United States v. Tavares, 100 F.3d 995, 998 (D.C.Cir.1996) (holding that defense counsel's denial of defendant's right to testify does not constitute prejudice per se).3

Because Petitioner has not shown prejudice resulting from the alleged denial of his right to testify, the Court finds that it need not hold an evidentiary hearing to determine whether...

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