Guess v. United States
| Decision Date | 25 March 2016 |
| Docket Number | Criminal No. 2:10cr140,Civil No. 2:14cv93 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | TIMOTHY WAYNE GUESS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
This matter is before the Court on Timothy Wayne Guess's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255.1 Petitioner's § 2255 Motion and associated memorandum advance more than 250 claims, nearly all of which assert ineffective assistance of counsel ("IAOC"). Many of these claims are duplicative and nondescript, with Petitioner's § 2255 motion advancing twenty-five primary grounds for relief, and each primary ground including numerous separately numbered subclaims.2 The Government filed a responsive brief which, in somewhat of a herculean effort,categorizes and endeavors to respond to each of Petitioner's hundreds of subclaims. ECF No. 155. After obtaining an extension of time, Petitioner filed a reply brief and reply affidavit. ECF Nos. 159, 160. Petitioner thereafter filed a motion for specific discovery, and after such discovery was provided by the Government, this Court entered an Order permitting Petitioner additional time to file what amounted to a second § 2255 reply brief. ECF No. 167. Petitioner's second/supplemental reply brief, submitted in two separate filings, totaled more than 125 pages of argument. ECF Nos. 168, 169.
Notwithstanding the excessive number of claims advanced by Petitioner, the Court has reviewed and considered all of Petitioner's claims and finds that none are sufficient to satisfy the legal standard applicable to collateral challenges to a final conviction and/or sentence.3 Moreover, after reviewing the written record, the Court finds that an evidentiary hearing is unnecessary because the record conclusively demonstrates that Petitioner is not entitled to any relief. See R. Gov. § 2255 Proc. in U.S. Dist. Cts. 8(a). Asdiscussed below, Petitioner's § 2255 motion is DENIED in its entirety, to include all of the primary claims and subclaims expressly addressed below and those claims considered but not individually discussed herein.
On June 23, 2010, Julie Oliva ("Oliva") was arrested for possessing methamphetamine (hereinafter "meth"). As a result of her arrest, Oliva agreed to participate in a sting whereby, under police supervision, she arranged the purchase of approximately three grams of meth from a drug source who had been introduced to Oliva by her roommate, Kristin Post ("Post").4 While at the Police Operations Center, Oliva made a call to Petitioner (the source) and arranged for Petitioner to meet Oliva at her apartment to complete a meth transaction. However, before Oliva and officers arrived back at her residence, Petitioner called Oliva stating that he was already there, standing out front. When Oliva arrived and drove by the location in the vehicle with the officers she identified Petitioner to the police as well as his white pickup truck parked in front of her apartment building. The police then approached and apprehended Petitioner, and during a search of his person, they found approximately three grams of meth,approximately $1,100 in cash, and a loaded firearm. Petitioner was questioned, without having been read his Miranda rights, and he indicated that the white truck out front belonged to him. Petitioner also had the truck keys hanging around his neck. When asked, Petitioner declined to consent to a search of his truck. The police, however, had a drug dog perform a sweep of the truck, and after the dog alerted, the truck was searched. The following items were found in the truck: a large quantity of Oxycodone pills, Diazepam and Amphetamine pills, approximately 18 grams of methamphetamine, a second firearm, approximately $1,400 in cash, and a digital scale.
Petitioner was indicted by a federal grand jury, and the Government subsequently pursued and obtained a superseding indictment charging Petitioner with ten felony offenses, including six drug trafficking offenses and four firearm offenses. Two of the four firearm offenses carried consecutive mandatory minimum sentences under 18 U.S.C. § 924(c). After a multi-day jury trial, Petitioner was convicted of all counts, to include all three conspiracies charged in Count One.5
Defense counsel thereafter moved for judgment of acquittal, sought to dismiss one of the § 922(g) felon in possession of a firearm counts as multiplicitous, and sought to avoid theimposition of consecutive sentences on the § 924(c) firearm in furtherance counts. While defense counsel was successful in securing a ruling that the two § 922(g) felon in possession counts were multiplicitous, counsel was unable to succeed on his other challenges, including his challenge to the § 924(c) counts. This Court thereafter imposed a sentence of 460 months imprisonment, consisting of 100 months, concurrent, on all of the drug counts and the remaining § 922(g) count, 60 months consecutive on the first § 924(c) conviction, and 300 months consecutive on the second § 924(c) conviction. The consecutive sentences on the § 924(c) counts were mandated by statute.
Petitioner appealed his conviction and sentence, and the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") affirmed. Specifically, the Fourth Circuit rejected Petitioner's challenges to the conspiracy conviction and his challenge asserting that the two § 924(c) firearm counts were "multiplicitous."
Petitioner subsequently filed his § 2255 motion advancing twenty-five claims, which include more than 200 additional subclaims, and his motion and accompanying memorandum span approximately 150 pages, the majority of which are single spaced. While such briefing appears to be in gross violation of the Local Rules of this Court limiting civil memoranda to thirty double spaced pages, E.D. Va. Loc. Civ. R. 7(F), the Governmentdid not challenge Petitioner's filing on this basis and instead endeavored to categorize and group Petitioner's claims and subclaims and offer a response to each. After obtaining an extension of time to file his initial reply and supplemental reply, Petitioner's reply briefs, affidavits, and exhibits have been received and reviewed by the Court. This matter is therefore ripe for review.
A federal prisoner, in custody, may collaterally attack his sentence or conviction by moving the district court "to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). To obtain such relief, a petitioner must prove by a preponderance of the evidence that his sentence or conviction was "imposed in violation of the Constitution or laws of the United States," that the district court "was without jurisdiction to impose such sentence," that the sentence exceeds "the maximum authorized by law," or that the sentence or conviction is "otherwise subject to collateral attack." Id.; Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Because a § 2255 motion "is ordinarily presented to the judge who presided at the original conviction and sentencing . . . the judge's recollection of the events at issue" may inform the resolution of the motion. Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977).
A § 2255 motion is, in essence, a statutory federal habeas corpus action that enables a petitioner to collaterally attack his sentence or conviction through the filing of a new proceeding, as contrasted with a direct appeal.6 United States v. Hadden, 475 F.3d 652, 663 (4th Cir. 2007). With limited exceptions, a petitioner advancing new claims asserted for the first time in a § 2255 motion "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). The "higher hurdle" applies because, once a Petitioner's opportunity to pursue a direct appeal has been waived or exhausted, there is "a final judgment [that] commands respect." Id. at 164-65. Accordingly, the doctrine of procedural default generally prevents a district court from reaching the merits of § 2255 claims that were not raised on direct appeal unless a petitioner can show: (1) "cause" excusing the failure to directly appeal such alleged errors; and (2) "actual prejudice resulting from the errors of which he complains." United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999).
"'The existence of cause for a procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel.'" UnitedStates v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (quoting Mikalajunas, 186 F.3d at 493). As for prejudice, it is not enough for a petitioner to demonstrate "a possibility of prejudice," but rather, he must show that errors "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170. A § 2255 petitioner need not, however, overcome the procedural default bar to advance a freestanding claim of ineffective assistance of counsel, which is properly asserted for the first time in a § 2255 motion. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) .7
The Sixth Amendment to the Constitution of the United States provides that "the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const, amend. VI. The United States Supreme Court has interpreted the right to counsel as providing a defendant "'the right to theeffective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686 (1984) (emphasis added) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970))....
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