Pemberton v. United States
| Decision Date | 09 January 2019 |
| Docket Number | CRIMINAL NO. 4:17cr50-3,CIVIL NO. 4:18cv90 |
| Citation | 352 F.Supp.3d 610 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Jerrod PEMBERTON, Petitioner, v. UNITED STATES of America, Respondent. |
Amy E. Cross, Howard J. Zlotnick, United States Attorney's Office, 721 Lakefront Commons, Suite 300, Newport News, Virginia 23606, for United States of America.
Bryan L. Saunders, Law Office of Bryan L. Saunders, P. O. Box 1633, Newport News, Virginia 23601, for Defendant.
This matter comes before the Court upon Jerrod Pemberton's ("Petitioner") pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (" § 2255 Motion"). ECF No. 95. In such motion, Petitioner asks the Court to vacate his judgment of conviction and sentence on the grounds that his two convictions for brandishing a firearm under 18 U.S.C. § 924(c)(1)(A) are unlawful and that his defense counsel rendered constitutionally deficient assistance. For the reasons set forth herein, Petitioner has failed to state a cognizable claim for relief. Accordingly, his § 2255 Motion must be DENIED.
On May 8, 2017, a federal grand jury sitting in Newport News, Virginia named Petitioner and two-codefendants in an eleven-count criminal indictment charging them with the following eleven counts: Conspiracy to Interfere with Commerce by Robbery in violation of 18 U.S.C. § 1951(a) (Count 1); five counts of Robbery Affecting Commerce in violation of 18 U.S.C. §§ 1951(a) and 2 (Counts 2, 4, 6, 8 and 10); and five counts of Possessing and Brandishing a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A) and 2 (Counts 3, 5, 7, 9 and 11). ECF No. 1. On August 17, 2017, pursuant to a written plea agreement with the United States ("Government"), Petitioner appeared before the magistrate judge and pled guilty to Conspiracy (Count 1) and two counts of Possessing and Brandishing a Firearm in violation of § 924(c)(1)(A) (Counts 3 and 11). ECF No. 24. Pursuant to the mandatory "stacking" penalty under § 924(c)(1), Petitioner faced a mandatory minimum sentence of 7 years on Count 3 plus a mandatory minimum sentence of 25 years on Count 11, each to be served consecutive to the sentences imposed on all other counts. See 18 U.S.C. §§ 924(c)(1)(A)(ii) and (c)(1)(C)(i).
On November 13, 2017, Petitioner appeared before the Court for sentencing. ECF No. 69. During the hearing, the Court accepted Petitioner's pleas of guilty, found him guilty of the offenses, and imposed a total of 408 months in prison, which was 73 months below the low end of Petitioner's advisory sentencing range under the Guidelines. See Judgment, ECF No. 73 at 2; Sealed Statement of Reasons, ECF No. 74. Petitioner's total term of imprisonment includes 24 months on Count 1 plus the mandatory minimum sentences of 7 years (84 months) on Count 3 and 25 years (300 months) on Count 11, all to be served consecutively. ECF No. 73, at 2. Final judgment was entered on November 15, 2017. Id. Petitioner did not appeal.
On June 20, 2018, Petitioner timely filed the instant § 2255 Motion, which was docketed by the Clerk of this Court on July 20, 2018.1 ECF No. 95. Such motion is now before the Court.
28 U.S.C. § 2255 allows a federal prisoner to move to "vacate, set aside or correct" a federal sentence on one of four grounds: "[1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The Supreme Court has held that § 2255 is the appropriate vehicle by which a federal prisoner may challenge both his conviction and sentence. Davis v. United States, 417 U.S. 333, 343–44, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974).
However, a § 2255 motion "may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Generally, any claim that could have been raised at trial or on direct appeal, but was not, is barred as procedurally defaulted. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). But this rule of default excludes claims of ineffective assistance of counsel, Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), which are generally not cognizable on direct appeal unless the record on appeal conclusively shows ineffective assistance, United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (internal citation omitted).
When filing a § 2255 petition, the petitioner bears the burden of proving his grounds for relief by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). However, a pro se petitioner is entitled to have his petition and issues asserted therein construed liberally. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Upon reviewing a § 2255 motion, the district court may, in its discretion, deny the motion without a hearing. Raines v. United States, 423 F.2d 526, 529–31 (4th Cir. 1970). But it may only do so 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(b).
In his § 2255 Motion, Petitioner asks the Court to set aside both his judgment of conviction and his sentence on five purported grounds. ECF No. 95. Grounds One, Two and Five challenge the lawfulness of his § 924(c) convictions, and Grounds Three and Four assert claims of ineffective assistance of counsel. Id. The Court shall address each of these grounds in turn below.
Ground One alleges that Petitioner's two § 924(c) convictions (Counts 3 and 11) were premised on the commission of crimes of violence, namely, the robberies alleged in Counts 2 and 10 of the indictment, but such counts were ultimately dismissed pursuant to Petitioner's plea agreement with the Government. ECF No. 95 at 4. Petitioner therefore argues that the essential elements of his § 924(c) charges were not satisfied and that his convictions on Counts 3 and 11 are invalid. Id.
This argument is without merit. The Fourth Circuit has clearly held that § 924(c) convictions do not require a conviction on the predicate crime of violence or drug trafficking offense. See United States v. Carter, 300 F.3d 415, 425 (4th Cir. 2002). This is also the consensus of every federal circuit to have addressed the question.2 Rather, to secure a conviction under § 924(c), there need only be "legally sufficient proof that the predicate crime was, in fact, committed." United States v. Link, 214 F.Supp.3d 506, 518 (E.D. Va. 2016) (quoting Johnson v. United States, 779 F.3d 125, 130 (2d Cir. 2015) ).
Here, there is more than sufficient evidence to prove that Petitioner committed the underlying acts of robbery alleged in Counts 2 and 10 even though he was never convicted of such counts. The agreed Statement of Facts supporting Petitioner's convictions states that, on March 6, 2017, at approximately 3:30 a.m., Petitioner and one of his co-defendants entered the 7-Eleven in the 9900 block of Jefferson Avenue, Newport News, Virginia where they ultimately robbed the store clerk at gunpoint and took tobacco products from the store. ECF No. 42 ¶ 1. This is the precise offense conduct alleged in Count 2 of the indictment. ECF No. 1 at 3. Petitioner's Statement of Facts further states that, at approximately 1:00 p.m. on that same date, Petitioner and one of his co-defendants entered the 1st Stop Convenience Store located in the 2200 block of Executive Drive, Hampton, Virginia where they ultimately robbed a store clerk at gunpoint and took U.S. currency from the store. ECF No. 42 ¶ 5. This is the precise offense conduct alleged in Count 10 of the indictment. ECF No. 1 at 9. During Petitioner's Rule 11 proceeding before the magistrate judge of this Court, Petitioner, under penalty of perjury, acknowledged that he read the Statement of Facts and initialed every page thereof, and he admitted that the facts alleged therein were true. See ECF No. 41. Based on this Statement of Facts, there is clearly legally sufficient evidence that Petitioner committed the crimes of violence underlying his § 924(c) convictions. Therefore, Ground One of Petitioner's § 2255 Motion fails to state a claim for relief.
Petitioner next argues that at least one of his § 924(c) convictions should be vacated because the underlying crimes of violence (Hobbs Act robberies) sprang from a "single impulse" and constituted a single criminal episode given that the robberies occurred on the same day, in the same area, and had the same purpose. ECF No. 95 at 5. At the outset, the Court notes that the five robberies comprising Petitioner's conspiracy in this case occurred at five different locations across Newport News and Hampton and occurred over a nine-hour time span. See Statement of Facts, ECF No. 42. Regardless, the temporal or spatial proximity of the underlying predicate offenses does not control whether they can sustain multiple § 924(c)(1) convictions. In fact, multiple § 924(c) convictions can arise out of a single predicate offense. United States v. Camps, 32 F.3d 102, 106 (4th Cir. 1994). As the Fourth Circuit explained in Camps:
It is, we believe, self-evident that a defendant who has engaged in numerous instances of the precise conduct that Congress has outlawed has committed more than one criminal offense. A defendant who has "used" or "carr...
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