U.S. v. Allgood

• Decision Date: 27 April 1999
• Docket Number: Crim. No. 2:90cr128.,Civ. No. 2:98CV952.
• Citation: 48 F.Supp.2d 554
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Richard F. ALLGOOD, Petitioner/Defendant.

48 F.Supp.2d 554

UNITED STATES of America v. Richard F. ALLGOOD, Petitioner/Defendant.

Civ. No. 2:98CV952.

Crim. No. 2:90cr128.

United States District Court, E.D. Virginia, Norfolk Division.

April 27, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Janet S. Reincke, Assistant United States Attorney, U.S. Attorney's Office, Norfolk, VA, for USA.

James O. Broccoletti, Zoby & Broccoletti, P.C., Norfolk, VA, for defendant.

OPINION AND FINAL ORDER

REBECCA BEACH SMITH, District Judge.

This matter is before the court on petitioner Richard F. Allgood's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255. For the reasons set forth below, defendant's motion is DENIED.

I. Factual and Procedural History

On October 18, 1990, Allgood pled guilty to one count of conspiracy to possess with the intent to distribute and to distribute marijuana under 21 U.S.C. § 846, and one count of tax evasion under 26 U.S.C. § 7201. On November 30, 1990, Allgood was sentenced to ten years confinement for the drug charge, and a suspended sentence with five years of probation on the tax evasion charge.¹ Allgood was released from confinement on January 20, 1995, at which time he began his period of probation on the tax evasion conviction. However, on June 18, 1996, the Parole Commission revoked Allgood's parole for testing positive for the use of cocaine and marijuana, and sent him back to prison, from which he was released on July 20, 1996. Upon his release, Allgood continued his term of probation on the tax evasion charge.

On April 16, 1998, this court found Allgood guilty of violating the terms of his probation, revoked his probation, and imposed a term of incarceration of five years imprisonment, to run concurrently with any unserved portion of Allgood's original sentence on the drug conviction that the Parole Commission might order due to his probation violation. Allgood did not file an appeal of the probation revocation.

Allgood filed his § 2255 motion on August 18, 1998. In his motion, Allgood claims that his counsel was ineffective for failing to file an appeal of the revocation of Allgood's probation, which appeal Allgood claims he directed his attorney to file. Citing Federal Rule of Criminal Procedure 32, Allgood also claims that the five-year term of incarceration imposed at his revocation hearing should be vacated, and he should be "re-sentenced" because the court failed to inform him of his right to appeal.

On September 1, 1998, the court ordered the United States to respond to Allgood's petition within sixty (60) days. The government's response was filed on November 2, 1998. In its response, the government conceded that Allgood was not informed of his right to appeal on April 16, 1998, when his probation was revoked, and agreed that he should be re-sentenced and advised of his right to appeal, pursuant to Federal Rule of Criminal Procedure 32(c)(5), and Paige v. United States, 443 F.2d 781 (4th Cir.1971). The government also argued that Allgood's ineffective assistance of counsel claim must fail because a constitutional right to counsel must exist for an ineffective assistance of counsel claim to succeed, and there is no constitutional right to counsel in a probation revocation hearing. The government also asserted that Allgood did not, as he claims, instruct his counsel to file an appeal, and submitted an affidavit from Allgood's counsel to this effect.

After the court set a hearing in this case, the government filed a supplemental and corrected response to Allgood's § 2255 motion. In their supplemental response, the government reversed its previous concession that Allgood's sentence had to be vacated because he was not informed by the court of the right to appeal at his probation revocation hearing. The court held a hearing on Allgood's § 2255 motion on February 25, 1999.

II. Analysis of Defendant's § 2255 Claims

In his § 2255 motion, defendant raises the following arguments: (1) his counsel was ineffective for failing to file an appeal when his probation was revoked; (2) he should be re-sentenced because the court failed to inform him of his right to appeal the term of incarceration imposed at the revocation hearing; (3) the court erred by failing to inform him of the direct consequences of his guilty plea; and (4) the court committed numerous errors at his revocation hearing.²

Section 2255 provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255. A petitioner collaterally attacking his sentence or conviction pursuant to § 2255 bears the burden of proving the grounds for collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

The usual and customary method of correcting trial errors is by appeal. Sunal v. Large, 332 U.S. 174, 177, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). Where a constitutional error asserted by a defendant in a § 2255 motion was not raised at trial, sentencing, or on direct appeal, the defendant may have his claim reviewed under limited circumstances. He must, however, meet a two-part "cause and actual prejudice" test to obtain collateral relief. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Maybeck, 23 F.3d 888, 890 n. 1 (4th Cir.1994). Under that test, "to 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." Frady, 456 U.S. at 167-68, 102 S.Ct. 1584. This standard presents "a significantly higher hurdle than would exist on direct appeal." Id. at 166, 102 S.Ct. 1584.

Should a movant fail to demonstrate cause and prejudice, Supreme Court precedent nevertheless authorizes collateral review in a narrow class of cases, where the error involves a "`fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). However, this rule applies only in "a very narrow realm of cases where a constitutional violation may have resulted in the conviction of an innocent person." Noble v. Barnett, 24 F.3d 582, 586 n. 5 (4th Cir.1994).

However, the standard of review for an ineffective assistance of counsel claim in a § 2255 motion is different than the standard for other constitutional claims. The Frady "cause and actual prejudice" test does not apply because, as numerous courts have noted, ineffective assistance of counsel is an issue which "is more properly raised in a § 2255 habeas motion for collateral relief," and thus should not be raised on direct appeal. United States v. DeFusco, 949 F.2d 114, 120 (4th Cir.1991); see United States v. Lurz, 666 F.2d 69, 78 (4th Cir.1981); United States v. Fisher, 477 F.2d 300, 302 (4th Cir.1973). One who raises an ineffective assistance claim for the first time in a § 2255 motion does not have to pass muster under Frady, but need only satisfy the less stringent two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, defendant must show that counsel did not provide "reasonably effective assistance." Id. at 687, 104 S.Ct. 2052. In other words, to show deficient performance, the defendant must prove that counsel's advice was not "`within the range of competence demanded of attorneys in criminal cases.'" Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). Second, "the defendant must show that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To demonstrate prejudice, the defendant must prove that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. Failure to meet either prong defeats a defendant's ineffective assistance of counsel claim. Id. at 700, 104 S.Ct. 2052. The court need not address both components of the test if the defendant makes an insufficient showing on one part of the test. Id. at 697, 104 S.Ct. 2052.

The court now turns to each of defendant's four claims.

A. Ineffective Assistance of Counsel

In this case, Allgood's ineffective assistance of counsel claim fails because, as the government correctly argues, there is no constitutional right to counsel in a probation violation hearing. The Supreme Court has consistently held that because there is no constitutional right to counsel in state post-conviction proceedings, a defendant cannot raise an ineffective assistance of counsel claim as a result of actions occurring in post-conviction proceedings. See Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Gagnon v. Scarpelli, 411 U.S. 778, 787, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) ("the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings") (emphasis added). In Gagnon, the Court adopted a case-by-case approach to the issue of whether a particular defendant is entitled to counsel in such a hearing. Id. at 787, 93 S.Ct. 1756. Relying on these cases, a number of federal appeals courts, notably the Second Circuit in United States v. Meeks, 25 F.3d 1117 (2d Cir.1994), have held that there is no constitutionally guaranteed right to counsel in federal supervised-release proceedings. Id. at 1123 (citing Gagnon, 411...