The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
MICHAEL JUSTIN BAILEY,
Plaintiff,
v. CIVIL ACTION NO. 1:20-00235
(Criminal Action No. 1:18-00093-01)
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
findings and recommendations regarding disposition pursuant to
28 U.S.C. § 636(b)(1)(B). Magistrate Judge Aboulhosn submitted
to the court his Findings and Recommendation on July 8, 2020, in
which he recommended that the district court deny Bailey’s
motion under 28 U.S.C. § 2255 and dismiss this matter from the
court’s docket.
In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days, plus three mailing
days, in which to file any objections to Magistrate Judge
Aboulhosn’s Findings and Recommendation. The failure of any
party to file such objections constitutes a waiver of such
party's right to a de novo review by this court. Snyder v.
Ridenour, 889 F.2d 1363 (4th Cir. 1989). Moreover, this court
need not conduct a de novo review when a plaintiff “makes
general and conclusory objections that do not direct the court
to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982). Bailey filed objections to the PF&R. See ECF No. 82.
I. Background
On May 1, 2018, a federal grand jury returned a seven-count
indictment against Bailey and his codefendant, Sarah K. Bailey,
as follows:
Count One- conspiracy to commit Hobbs Act Robbery, in
violation of 18 U.S.C. § 1951;
Count Two- Hobbs Act Robbery on October 26, 2017, in
violation of 18 U.S.C. § 1951;
Count Three- Hobbs Act Robbery on November 5, 2017, in
violation of 18 U.S.C. § 1951;
Count Four- brandishing a firearm during and in relation
to a crime of violence (expressly identified
as Hobbs Act Robbery on November 5, 2017),
in violation of 18 U.S.C. §
924(c)(1)(A)(ii);
Count Five- felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2);
Count Six- unlawful user of controlled substances in
possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(3) and 924(a)(2); and
Count Seven- possessing a stolen firearm on November 5,
2017, in violation of 18 U.S.C. §§ 922(j)
and 924(a)(2).
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Michael Bailey was charged in Counts, One, Two, Three, Four,
Five, and Seven. Defendants were alleged to have conspired to
rob, robbed, and brandished firearms while robbing two video
poker parlors located within the Southern District of West
Virginia.
Pursuant to a written plea agreement with the United
States, Bailey pled guilty to Counts One and Four of the
indictment charging him with conspiracy to commit Hobbs Act
robbery, in violation of 18 U.S.C. § 1951; and brandishing a
firearm during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). See ECF No. 59 in
Criminal Action No. 1:18-00093-01. Count Four of the indictment
expressly identifies the Hobbs Act Robbery occurring on November
5, 2017 (Count Three), as the underlying crime of violence.
Bailey was sentenced to a term of imprisonment of 162 months on
Count One and 84 months on Count Two, sentences to run
consecutively, resulting in a total term of incarceration of 246
months.
II. Analysis
In his Motion to Vacate, Bailey argues, pursuant to United
States v. Davis, 139 S. Ct. 2319, 2336 (2019), that his
conviction on Count Four must be vacated because the underlying
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predicate offense of conspiracy to commit Hobbs Act robbery is
no longer a crime of violence.
As Magistrate Judge Aboulhosn noted, Bailey is correct:
conspiracy to commit Hobbs Act robbery no longer qualifies as a
predicate crime of violence under 18 U.S.C. § 924(c). However,
as the PF&R also noted, the underlying crime of violence
referenced in Count Four was not conspiracy to commit Hobbs Act
robbery, it was Hobbs Act robbery. Hobbs Act robbery remains a
crime of violence under § 924(c)’s elements clause. See United
States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019). Therefore,
the PF&R concluded that Bailey’s motion was without merit.1
In his objections, plaintiff does not grapple with the
analysis in the PF&R which explains why his motion should be
denied. Instead, he changes tack, arguing instead that he
cannot be convicted on Count Four because he was never convicted
of the underlying crime of violence supporting that count, i.e.,
the Hobbs Act robbery set out in Count Three. He also argues
that he did not “knowingly or willingly admit to the Hobbs Act
robbery charges.” ECF No. 82 at 4-5.
Bailey’s first argument is easily disposed of as the
“Fourth Circuit has clearly held that § 924(c) convictions do
1 The cases cited by Bailey to suggest otherwise are
distinguishable and/or noncontrolling.
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not require a conviction on the predicate crime of violence or
drug trafficking offense.” Pemberton v. United States, 352 F.
Supp.3d 610, 613 (E.D. Va. 2019) (citing United States v.
Carter, 300 415, 425 (4th Cir. 2002)); see also United States v.
Porter, No. 21-7355, 2023 WL 2570967, at *1 (Mar. 20, 2023) (“We
have held that 18 U.S.C. § 924(c) convictions do not require a
conviction on the predicate . . . offense.”) (cleaned up);
United States v. Thompson, No. 19-7586, 2021 WL 4521111, at *1
(4th Cir. Oct. 4, 2021) (“[T]he Government is neither required
to separately charge or convict the defendant of the § 924(c)
predicate offense[.]”) (cleaned up); United States v. Link, 214
F. Supp.3d 506, 518 (E.D. Va. 2016) (“Importantly, defendant
need not have been convicted of the predicate crimes of violence
for his § 924(c) convictions to stand.”) (emphasis in original).
The Pemberton court also noted the Fourth Circuit’s position was
consistent with “the consensus of every federal circuit to have
addressed the question.” Id. “Rather, to secure a conviction
under § 924(c), there need only be ‘legally sufficient proof
that the predicate crime was, in fact, committed.’” Id. at 613-
14 (quoting United States v. Link, 214 F. Supp.3d 506, 518 (E.D.
Va. 2016)).
In this case, there is sufficient evidence that Bailey
committed the underlying Hobbs Act robbery alleged in Count Four
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even though he was not convicted of that offense. Count Four of
the indictment charged that “[o]n or about November 5, 2017, . .
. defendants MICHAEL JUSTIN BAILEY and SARAH K. BAILEY, aided
and abetted by each other, did knowingly use, carry, and
brandish a firearm, during and in relation to a crime of
violence for which they may be prosecuted in a court of the
United States, that is, robbery affecting interstate commerce in
violation of 18 U.S.C. § 1951, as alleged in Count Three of the
indictment.” ECF No. 10 in Criminal Action No. 1:18-00093-01.
In the stipulation of facts attached to his plea agreement and
signed by both Bailey and his attorney, Bailey admitted that
“[o]n November 5, 2017, Sarah Bailey and I, committed a robbery
of Rosie’s II, a video poker parlor located near Bluefield,
Mercer County, West Virginia. On November 5, Sarah and I
entered Rosie’s II with firearms that had previously been
stolen. Both Sarah and I brandished the stolen firearms, . . .
at an employee of Rosie’s II and several patrons. The employee
was bound with duct tape. During the robbery, we stole, against
the will of the victims, approximately $4,960 from Rosie’s II
and personal items from the employee and patrons, including a
purse and cell phones.” ECF No. 59 at 10. In addition, at his
plea hearing and under oath, Bailey admitted to the factual
basis underlying his guilty plea. Based on Bailey’s own
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admissions, there is legally sufficient evidence that he
committed Hobbs Act robbery on November 5, 2017, to support his
conviction on Count Four. See Porter, 2023 WL 2570968, at *1
(“The written factual basis for Porter’s guilty plea establishes
that reasonable jury could have convicted him of [the predicate
offense]”); Pemberton, 352 F. Supp.3d at 614 (“Based on this
[agreed] Statement of Facts there is clearly legally sufficient
evidence that Petitioner committed the crimes of violence
underlying his § 924(c) convictions.”).
As for Bailey’s argument that he did not knowingly or
willingly admit to the Hobbs Act robbery charge, this self-
serving allegation is belied by the record.
[A] defendant's solemn declarations in open court
affirming [a plea] agreement . . . carry a strong
presumption of verity because courts must be able to
rely on the defendant's statements made under oath
during a properly conducted Rule 11 plea colloquy.
Indeed, because they do carry such a presumption, they
present a formidable barrier in any subsequent
collateral proceedings. . . . Thus, in the absence of
extraordinary circumstances, allegations in a § 2255
motion that directly contradict the petitioner's sworn
statements made during a properly conducted Rule 11
colloquy are always palpably incredible and patently
frivolous or false.
United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005)
(citations and quotation marks omitted). As noted above, the
plea agreement, including the stipulation of facts, was signed
by Bailey and his attorney. In that agreement, Bailey
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specifically “stipulate[d] and agree[d] that the facts
comprising the offense of conviction and relevant conduct
include the facts outlined in the ‘Stipulation of Facts,’ a copy
of which” was attached to the Plea Agreement. ECF No. 59 at 5.
In addition, Bailey’s Rule 11 colloquy demonstrates that he
entered a knowing and voluntary guilty plea with a full
appreciation of the potential penalties he faced. At the plea
hearing, Bailey acknowledged that he understood the plea
agreement, that he had gone over it with his attorney and that
the factual basis as contained in the Stipulation of Facts was
true. He also swore under oath that he understood the elements
of the offense and what the government would have to prove if
the case went to trial. Bailey’s claim is without merit.
Bailey’s claims are also barred by the waiver contained in
his plea agreement. According to his plea agreement:
Mr. Bailey knowingly and voluntarily waives his
right to seek appellate review of his conviction and
of any sentence of imprisonment, fine, or term of
supervised release imposed by the District Court, or
the manner in which the sentence was determined, on
any ground whatsoever including any ground set forth
in 18 U.S.C. § 3742(a), except that the defendant may
appeal any sentence that exceeds the maximum penalty
prescribed by statute. Mr. Bailey also knowingly and
voluntarily waives any right to seek appellate review
of any claim or argument that (1) the statutes of
conviction, 18 U.S.C. § 1951 and 18 U.S.C. §
924(c)(1)(A)(ii) and 2 is unconstitutional, and (2)
Mr. Bailey’s conduct set forth in the Stipulation of
Facts. . . does not fall within the scope of the
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statute of conviction, 18 U.S.C. § 1951 and 18 U.S.C.
§ 924(c)(1)(A)(ii) and 2.
ECF No. 59 at 6. The claims Bailey raises herein fall squarely
within the waiver contained in the plea agreement.
Finally, to the extent that Bailey attempts to get
around his plea agreement waiver by advancing his claims under
the guise of ineffective assistance of counsel, that effort
fails. The standards established by the United States Supreme
Court in determining whether a defendant was denied his Sixth
Amendment right to effective assistance of counsel are set forth
in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under
Strickland, a plaintiff must show (1) that counsel’s performance
was so deficient that it “fell below an objective standard of
reasonableness,” and (2) that counsel’s deficiency resulted in
prejudice so as to render the results of the trial unreliable.
See id. at 687-92. Counsel’s performance is entitled to a
presumption of reasonableness. See id. at 689. Thus, a habeas
plaintiff challenging his conviction on the grounds of
ineffective assistance must overcome a strong presumption that
the challenged actions constituted sound trial strategies. See
id. The Court in Strickland cautioned against the ease in
second-guessing counsel’s unsuccessful assistance after the
adverse conviction and sentence are entered. See id. The
Fourth Circuit Court of Appeals specifically recognized that
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ineffective assistance of counsel may not be established by a
“Monday morning quarterbacking” review of counsel’s choice of
trial strategy. Stamper v. Muncie, 944 F.2d 170, 178 (4th Cir.
1991), cert. denied, 506 U.S. 1087 (1993).
“To show prejudice in the guilty-plea context, the
petitioner must ‘demonstrate a reasonable probability that, but
for counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial.’” Christian v. Ballard, 792
F.3d 427, 443-44 (4th Cir. 2015) (quoting Premo v. Moore, 562
U.S. 115, 129 (2011)).
Even without § 2254's deference, the
Strickland standard “is a most deferential one.”
Harrington, 562 U.S. at 105, 131 S. Ct. 770.
“Unlike a later reviewing court, the attorney
observed the relevant proceedings, knew of
materials outside the record, and interacted with
the client, with opposing counsel, and with the
judge” and “[i]t is all too tempting to
second-guess counsel's assistance after
conviction or adverse sentence.” Id. (internal
quotation marks omitted). . . .
* * *
“[T]he guilty plea and the often concomitant
plea bargain are important components of this
country's criminal justice system,” Blackledge v.
Allison, 431 U.S. 63, 71, 97 S. Ct. 1621, 52 L.
Ed.2d 136 (1977), and the advantages that they
provide to all concerned “can be secured . . .
only if dispositions by guilty plea are accorded
a great measure of finality.” Id.
“[R]epresentations of the defendant, his lawyer,
and the prosecutor at such a hearing, as well as
any findings made by the judge accepting the
plea, constitute a formidable barrier in any
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subsequent collateral proceedings.” Id. at 73–
74, 97 S. Ct. 1621. Such “[s]olemn declarations
in open court carry a strong presumption of
verity” and “subsequent presentation of
conclusory allegations unsupported by specifics
is subject to summary dismissal, as are
contentions that in the face of the record are
wholly incredible.” Id. at 74, 97 S. Ct. 1621.
“More often than not a prisoner has everything to
gain and nothing to lose from filing a collateral
attack upon his guilty plea,” because “[i]f he
succeeds in vacating the judgment of conviction,
retrial may be difficult.” Blackledge, 431 U.S.
at 71, 97 S. Ct. 1621. “These considerations
make strict adherence to the Strickland standard
all the more essential when reviewing the choices
an attorney made at the plea bargain stage.”
Premo, 562 U.S. at 125, 131 S. Ct. 733.
Id. at 444.
Under the second prong of Strickland, a petitioner must
show that the errors were “sufficiently serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687. Furthermore, a court may address
the two prongs in any order and a failure to establish one prong
obviates a need to address the other. Id. at 697 (“Although we
have discussed the performance component of an ineffectiveness
claim prior to the prejudice component, there is no reason for a
court deciding an ineffective assistance claim to approach the
inquiry in the same order or even to address both components of
the inquiry if the defendant makes an insufficient showing on
one. In particular, a court need not determine whether counsel's
performance was deficient before examining the prejudice suffered
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by the defendant as a result of the alleged deficiencies. The
object of an ineffectiveness claim is not to grade counsel's
performance. If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed. Courts
should strive to ensure that ineffectiveness claims not become so
burdensome to defense counsel that the entire criminal justice
system suffers as a result.”).
As discussed above, under Strickland, not only must
Bailey show that his counsel’s performance was deficient, he also
must show that he was prejudiced by that performance. A court
can reasonably reject a petitioner’s claim of prejudice if the
“decision to reject the plea agreement and proceed to trial . . .
would not have been a rational one.” Christian, 792 F.3d at 452
(citing Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).
When evaluating objective reasonableness
under the prejudice prong of Strickland, “[t]he
challenger's subjective preferences . . . are
not dispositive; what matters is whether
proceeding to trial would have been objectively
reasonable in light of all of the facts.”
United States v. Fugit, 703 F.3d 248, 260 (4th
Cir. 2012). The challenger “cannot make that
showing merely by telling [the court] now that
[he] would have gone to trial then if [he] had
gotten different advice.” Pilla v. United
States, 668 F.3d 368, 372 (6th Cir. 2012). In
other words, to obtain relief from a guilty
plea, the defendant must do more than allege he
would have insisted on going to trial if counsel
had not misadvised him as to the consequences of
that decision. The “petitioner must convince
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the court that a decision to reject the plea
bargain would have been rational under the
circumstances.” Padilla, 559 U.S. at 372, 130
S. Ct. 1473; see also Roe v. Flores–Ortega, 528
U.S. 470, 486, 120 S. Ct. 1029, 145 L. Ed.2d 985
(2000).
Id. at 452-53. In the instant case, Bailey does not even
attempt to show he can satisfy both prongs of Strickland. As
discussed above, his self-serving affidavit regarding counsel’s
performance is contradicted by the record.
Having reviewed the Findings and Recommendation filed by
Magistrate Judge Aboulhosn, the court hereby OVERRULES
plaintiff’s objections and adopts the findings and
recommendations contained therein. Accordingly, the court
hereby DENIES plaintiff’s motion under 28 U.S.C. § 2255 and
DIRECTS the Clerk to remove this case from the court’s active
docket.
Additionally, the court has considered whether to grant a
certificate of appealability. See 28 U.S.C. § 2253(c). A
certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). The standard is satisfied only upon a showing that
reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
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Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001). The court concludes that the governing
standard is not satisfied in this instance. Accordingly, the
court DENIES a certificate of appealability.
The Clerk is directed to forward a copy of this
Memorandum Opinion and Order to plaintiff, pro se, and counsel
of record.
IT IS SO ORDERED this 27th day of September, 2023.
ENTER:
Raut O Dabo
David A. Faber
Senior United States District Judge
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