Jones v. Link, 1:07CV360.
Decision Date | 25 June 2007 |
Docket Number | No. 1:07CV360.,1:07CV360. |
Citation | 493 F.Supp.2d 765 |
Parties | Bryant Duane JONES, Plaintiff, v. Richard J. LINK, Jr., Defendant. |
Court | U.S. District Court — Eastern District of Virginia |
Bryant Duane Jones, Petersburg, VA, pro se.
In this legal malpractice action, plaintiff, Bryant Duane Jones, a federal inmate proceeding pro se, has sued his former attorney, defendant Richard J. Link, Jr., for legal malpractice and unjust enrichment. In essence, plaintiff contends that as a result of defendant's negligence, plaintiff's offense level under the federal U.S. Sentencing Guidelines was improperly calculated, resulting in a sentence thirty-six (36) months longer than legally warranted. As a result of defendant's alleged negligence, plaintiff seeks $8,500 in legal fees he paid to defendant and $100,000 to compensate him for mental anguish he suffered from being sentenced to serve a longer sentence than legally warranted. For the reasons that follow, threshold dismissal is warranted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).1
On November 7, 2000, a jury found plaintiff guilty of (i) conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371; (ii) armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); and (iii) using and carrying a firearm while committing a crime of violence, in violation of 18 U.S.C. § 924(c). United States v. Jones, 1:00cr240-2 (E.D.Va. Feb. 23, 2001) (Judgment Order). Prior to sentencing, plaintiff retained defendant to represent him, paying him $8,500 for legal services. At sentencing on February 23, 2001, defendant did not object to the application of U.S.S.G. § 2B3.1(b)(2)(c), which authorizes a five-level enhancement "if a firearm was brandished or possessed," although application of this sentencing enhancement was improper under U.S.S.G. § 2K2.4 because defendant was convicted and sentenced for using and carrying a firearm while committing a crime of violence under 18 U.S.C. § 924(c).2 As a result of this error, defendant's offense level was set at twenty-seven, instead of twenty-two, which resulted in a sentencing range of 87 to 108 months, instead of 51 to 63 months.3 Plaintiff was then sentenced to (i) sixty (60) months imprisonment on Count One, conspiracy to commit armed bank robbery, (ii) eighty-seven (87) months imprisonment on Count Two, armed bank robbery, to be served concurrently with Count one, and (iii) sixty (60) months imprisonment on Count Three, using and carrying a firearm while committing a crime of violence, to be served consecutively with the sentences imposed on Counts One and Two, as provided by 18 U.S.C. § 924(c). Thus, plaintiff received a total sentence of imprisonment of one hundred forty-seven (147) months.
Thereafter, plaintiff noticed an appeal to the United States Court of Appeals for the Fourth Circuit and because plaintiff met the indigence requirement for appointment of counsel, defendant was appointed to continue to represent plaintiff on the appeal. On appeal, defendant, acting on plaintiffs behalf, raised nine claims of error, but did not raise the issue of the improper sentence enhancement. The Fourth Circuit denied the appeal and affirmed plaintiffs conviction and sentence. United States v. Jones, 01-4170, 2002 WL 999262 (4th Cir. May 16, 2002). Following this decision, defendant ceased to represent plaintiff.
Plaintiff then filed a pro se motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255, raising several claims, including a claim of ineffective assistance of counsel based on defendant's failure to raise the improper sentence enhancement at sentencing and on appeal. Plaintiffs § 2255 motion was granted in part and denied in part. Specifically, it was granted as to plaintiffs ineffective assistance of counsel claim because "there [was] no doubt [ ] that counsel's failure to object to the five-level enhancement under U.S.S.G. § 2B3.1(b)(2)(C) based on brandishing `fell below an objective standard of reasonableness.'" Jones, 1:00cr240-2, at 15 (Order) (quoting Strickland v. Washington, 466 U.S. 668, 688-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). On resentencing, plaintiff received a total custody sentence of 111 months incarceration — a 36 month reduction. At the time of plaintiffs resentencing, he had served less than 111 months, and therefore remained incarcerated.
On or about April 4, 2007,4 plaintiff, who remains incarcerated under the 111 month adjusted sentence, filed the instant action, alleging defendant's negligent conduct resulted in a 36 month increase in his sentence, required him to file a § 2255 motion, and caused him mental anguish. For these harms, plaintiff seeks $8,500 for unjust enrichment, $50,000 for legal malpractice at sentencing, $50,000 for legal malpractice on appeal, and any punitive damages and costs that may be appropriate.
In reviewing a complaint pursuant to § 1915, a court must dismiss a complaint that is frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2). Whether a complaint states a claim upon which relief can be granted is determined by the familiar standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6). De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir.2003); Sumner v. Tucker, 9 F.Supp.2d 641, 642 (E.D.Va.1998). Thus, the alleged facts are presumed true, and the complaint should be dismissed only when "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).
Analysis properly begins with an examination of Virginia's jurisprudence in the area of legal malpractice arising from an attorney's alleged negligence in a representing a defendant criminal case.5 In this area, Virginia has joined the majority of states in requiring that a legal malpractice plaintiff challenging his attorney's negligence in a criminal case, which resulted in an erroneous conviction, has two initial burdens: he must plead (i) "that he has obtained postconviction relief" and (ii) that he was "actually innocent" of the crimes charged. Taylor v. Davis, 265 Va. 187, 191, 576 S.E.2d 445 (2003) (citing Adkins v. Dixon, 253 Va. 275, 482 S.E.2d 797 (1997)); Ostrander v. Joynes, 46 Va. Cir. 518, 1997 WL 33642555 (1996). Underlying the first requirement — that plaintiff must have obtained postconviction relief is the principle that absent relief from a conviction or sentence, the criminal plaintiff's own actions are presumably the proximate cause of his injury. See R. Mallen & J. Smith, Legal Malpractice § 26.13 (2007 Edition).6 Similarly, the rationale underlying the second requirement — that plaintiff allege actual innocence — is that "courts will not assist the participant in an illegal act who seeks to profit from the act's commission." Adkins, 253 Va. at 281-82, 482 S.E.2d 797. As the Supreme Court of California explained in adopting the actual innocence requirement,
the notion of paying damages to a plaintiff who actually committed the criminal offense solely because a lawyer negligently tailed to secure an acquittal is of questionable public policy and is contrary to the intuitive response that damages should only be awarded to a person who is truly free from any criminal involvement.
Wiley v. County of San Diego, 19 Cal.4th 532, 79 Cal.Rptr.2d 672, 966 P.2d 983, 987 (Ca.1998).
Reasonably read, these two requirements impose on plaintiff the initial burden of pleading that his attorney's alleged malpractice, and not his own criminal actions, proximately caused his injury. See Cullen v. Cook, 1992 WL 55184, *4, 1992 U.S. Dist. LEXIS 3039, at *11 (W.D.Va.1992) ( ). Thus, where a plaintiff complains that his attorney's negligence resulted in his wrongful conviction, plaintiff has obviously met his initial burden of pleading proximate causation if he alleges (i) that he was actually innocent of the crimes charge, (ii) that defendant's negligence resulted in his wrongful conviction, and (iii) that he was exonerated by means of postconviction relief. See Adkins, 253 Va. at 281-82, 482 S.E.2d 797 ( ). It is not clear, however, how these initial burdens apply to a plaintiff who alleges that his attorney's negligence resulted in a sentencing error, rather than an error related to his conviction.
While there is no published Virginia decision on point, decisions from other jurisdictions sensibly hold that an allegation of actual innocence is not required where, as here, plaintiff complains that his attorney's negligence resulted in a sentencing error for which he obtained postconviction sentencing relief. See Powell v. Associated Counsel for the Accused, 131 Wash.App. 810, 813, 129 P.3d 831 (2006); Johnson v. Babcock, 206 Or.App. 217, 219, 136 P.3d 77 (2006); West v. Milton, No. 97-1770, 1998 WL 808355, 1998 U.S.App. LEXIS 28422 (6th Cir. Nov. 9, 1998). These decisions hold, instead, that it is sufficient for a plaintiff to allege (i) that his attorney's negligence resulted in a sentencing error and (ii) that plaintiff obtained post-conviction sentencing relief. In so holding, these courts explained that where plaintiff complains only that his attorney's negligence resulted in a sentencing error, the policy reason underlying the actual innocence requirement is no longer applicable, that is, excusing plaintiff from the actual innocence requirement does not permit plaintiff to "profit from the [crime's] commission"7 b...
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