Long v. United States, CIVIL ACTION NO. 2:17cv219

• Decision Date: 23 October 2017
• Docket Number: ORIGINAL CRIMINAL NO. 2:15cr161,CIVIL ACTION NO. 2:17cv219
• Court: U.S. District Court — Eastern District of Virginia
• Parties: TARIK KHALIL LONG, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

TARIK KHALIL LONG, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CIVIL ACTION NO. 2:17cv219

ORIGINAL CRIMINAL NO. 2:15cr161

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division

October 23, 2017

MEMORANDUM OPINION AND ORDER

This matter comes before the court on the Petitioner's pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("§ 2255 Motion" or "Motion"), submitted April 17, 2017. Mot., ECF No. 39.¹ On the same day, the Petitioner also submitted a "Pro Se Memorandum of Law and Facts" in support of his § 2255 Motion ("Memorandum"). Mem., ECF No. 40. The government responded on September 1, 2017, and forwarded a copy of its Response to the Petitioner on September 7, 2017. ECF Nos. 47, 48. The Petitioner filed a Reply to the government's Response on October 19, 2017. ECF No. 49. Thoughthe Petitioner's Reply was untimely and lacked a certificate of service, the court lifted the defects and forwarded a copy of the Reply to the United States Attorney. ECF No. 50. The matter is now ripe for consideration.

For the reasons below, the court DENIES the Petitioner's Motion in all respects except one, that being the Petitioner's claim that his counsel was ineffective for failing to file an appeal as instructed by the Petitioner. On that claim only, the court WITHOLDS RULING until an evidentiary hearing is conducted.

I. FACTUAL AND PROCEDURAL BACKGROUND

Starting in approximately May 2015 until approximately August 2015, the Petitioner distributed heroin to an individual referred to as D. D.² Statement of Facts at 2, ECF No. 25. D.D. would then further distribute the drugs in smaller quantities. Id. On approximately August 15, 2015, Virginia Beach Police Department ("VBPD") officers arrested D.D. and seized from him approximately 3.3 grams of heroin. Id. Following his arrest, D.D. agreed to cooperate with VBPD by contacting his supplier, the Petitioner. Id. VBPD officers then arrested the Petitioner and seized from him approximately 261.1 grams of heroin, marijuana, and approximately $4,311 in cash. Id. A search of the Petitioner's residence yielded a semi-automatic pistol, and asearch of a car parked at his residence yielded an additional 375.64 grams of heroin. Id. at 3.

On December 16, 2015, the Petitioner was charged by a Three-Count Indictment with (1) Conspiracy to Distribute and Possess with Intent to Distribute 100 Grams or More of Heroin, in violation of 21 U.S.C. § 846; (2) Possession of 100 or More Grams of Heroin with Intent to Distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); and (3) Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On March 24, 2016, the Petitioner appeared before the Honorable Magistrate Judge Douglas E. Miller for a plea hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure. Attach. 1 to Gov't Resp. ("Plea Hr'g Tr."), ECF No. 47-1. After conducting a Rule 11 colloquy, the court accepted the Petitioner's plea of guilty on Counts One and Three. Id. at 1-24. The remaining Count was dismissed. Plea Agreement at 5, ECF No. 24.

On September 2, 2016, this court adjudged the Petitioner guilty and sentenced him. ECF No. 35. The court determined that the Petitioner was a career offender under United States Sentencing Guidelines ("U.S.S.G.") § 4B1.1 because he had two state court convictions for Possession of Cocaine with Intent to Distribute, in violation of Virginia Code § 18.2-248. Presentence Investigation Report ("PSR") at ¶ 30, ECF No. 30. Assuch, the Petitioner was sentenced to three hundred (300) months' imprisonment, consisting of three hundred (300) months on Count One and one hundred twenty (120) months on Count Three, to run concurrently, followed by eight (8) years of supervised release. ECF Nos. 35, 36.

In his Memorandum and Reply, the Petitioner claims (1) that he received ineffective assistance of counsel in entering the plea agreement, Mem. at 4-18; Reply at 2-13, and (2) the sentence he received was above the maximum authorized by law, Mem. at 18-22; Reply at 13-16. In support of his ineffective assistance of counsel claim, the Petitioner asserts first that his counsel was constitutionally deficient for failing to argue that no conspiracy exists where the only other party to such conspiracy is a confidential informant. Mem. at 4; Reply at 2-7. Second, the Petitioner claims his counsel failed to file an appeal contrary to the Petitioner's instruction. Mem. at 11; Reply at 7-10. Third, the Petitioner claims his counsel failed to apprise him of the ramifications or nature of a plea agreement. Mem. at 13; Reply at 10-13. Next, in support of his sentencing claim, the Petitioner first asserts that he erroneously received the career offender enhancement because his two prior convictions are more than fifteen years old. Mem. at 19. The Petitioner also contends that his prior convictionsare not controlled substance offenses under U.S.S.G. § 4B1.2(b). Mem. at 21-22; Reply at 13-16.

For the reasons below, this court REJECTS the Petitioner's argument that his sentence was unlawful. The court also REJECTS the Petitioner's claim that his attorneys were ineffective because they failed to object to the Petitioner's conspiracy charge and explain the ramifications of the plea agreement. However, the court WITHOLDS RULING on the Petitioner's claim that counsel failed to file a notice of appeal as instructed and GRANTS the Petitioner an evidentiary hearing on that question.

II. LEGAL STANDARD FOR § 2255 PETITIONS

A prisoner may challenge a sentence imposed by a federal court if: (1) the sentence violates the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum; or (4) the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). A sentence is "otherwise subject to collateral attack," if a petitioner shows that the proceedings suffered from "'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

The prisoner bears the burden of proving one of these grounds by a preponderance of the evidence. See Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). If he satisfies that burden, the court may vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(b). However, if the motion, when viewed against the record, shows that the petitioner is entitled to no relief, the court may summarily deny the motion. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

III. THE PETITIONER'S SENTENCE

Ground One

The Petitioner contends that his sentence was unlawful because his state court convictions are not categorical matches with a controlled substance offense under U.S.S.G. § 4B1.2(b). Mem. at 21; Reply at 13-16. The Petitioner is incorrect.

Under § 4B1.1, a defendant is a career offender if, inter alia, "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4Bl.l(a). Section 4B1.2(b) defines a "controlled substance offense" as:

[A]n offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeitsubstance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b).

To determine whether a defendant's prior conviction constitutes a controlled substance offense under this provision, the court must determine whether "the elements of the prior offense correspond in substance to the elements" of a controlled substance offense. Taylor v. United States, 495 U.S. 575, 599 (1990). In so doing, the court applies a categorical approach, "looking 'only to the fact of conviction and the statutory definition of the prior offense.'" United States v. Dozier, 848 F.3d 180, 183 (4th Cir. 2017) (quoting Taylor, 495 U.S. at 602). If such information establishes that the prior offense is a match with the Guidelines offense, then the enhancement applies. Id.

However, where a statute is "divisible," "list[ing] elements in the alternative[] and thereby defin[ing] multiple crimes," looking at the statute is insufficient to determine whether a petitioner was convicted of an offense that matches the Guidelines offense. Id. (quoting Mathis v. United States, 136 S. Ct. 2243, 2249 (2016)). As such, the court may apply a modified categorical approach. Id. Under such an approach, the sentencing court may "consult 'a limited class of documents'—otherwise known as Shepard documents—'to determine what crime, with what elements, a defendant was convicted of.'" Id.

If "there [is] no dispute regarding the fact[s]" related to a prior conviction, however, "the judge [does] not need to enter into any fact[-]finding . . . within the meaning of . . . Shepard." United States v. Collins, 412 F.3d 515, 523 (4th Cir. 2005). Accordingly, the Shepard rule is not implicated, and the court may proceed on the basis of the facts to which the parties agree. United States v. Alston, 611 F.3d 219, 226 (4th Cir. 2010) ("In short, Shepard prevents sentencing courts from assessing whether a prior conviction counts as a[] . . . predicate conviction by relying on facts neither inherent in the conviction nor admitted by the defendant." (emphasis added)).

As stated previously, a controlled substance offense is an offense that "prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 4B1.2(b). The statute under which the defendant was...