Lockhart v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

GEORGE MARSHALL LOCKHART, )

)

Movant, )

)

v. ) CIVIL ACTION NO. 3:22-00140

) (Criminal No. 3:19-00201)

UNITED STATES OF AMERICA, )

)

Respondent. )

PROPOSED FINDINGS AND RECOMMENDATION

Pending before the Court is Movant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside

or Correct Sentence by a Person in Federal Custody and Supplemental Section 2255 Motion.2

(Civil Action No. 3:22-00140, Document Nos. 160 and 169.) By Standing Order, this matter was

referred to the undersigned United States Magistrate Judge for submission of proposed findings of

fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Id., Document

No. 162.)

FACTUAL AND PROCEDURAL BACKGROUND

A. Criminal Action No. 3:19-cr-00201:

On January 6, 2020, Movant pled guilty without a plea agreement to one count of

Conspiracy to Distribute a Quantity of Heroin and a Mixture or Substance Containing a Detectable

Amount of Fentanyl in violation of 21 U.S.C. § 846 (Count One), and one count of Being a Felon

in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Two).

2 Because Movant is acting pro se, the documents which he has filed in this case are held to a less

stringent standard than if they were prepared by a lawyer, and therefore they are construed

liberally. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

(Criminal Action No. 3:19-00201, Document Nos. 100, 102, 103.) On June 3, 2020, the District

Court sentenced Movant to a total term of 96 months imprisonment, to be followed by a three-year

term of supervised release. (Id., Document Nos. 128 and 129.) The District Court further imposed

a $200 special assessment. (Id.)

On June 18, 2020, Movant, by counsel, filed his Notice of Appeal. (Id., Document No.

134.) On appeal, Movant challenged the reasonableness of his sentence. (Id., Document No. 149.)

By Per Curiam Opinion entered on February 5, 2021, the Fourth Circuit affirmed the judgment of

the District Court. (Id., Document Nos. 149 and 150.)

B. Section 2255 Motion:

On March 18, 2022, Movant, acting pro se, filed his instant Motion Under 28 U.S.C. §

2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Civil No. 3:22-

00140, Document No. 160.) As grounds for habeas relief, Movant challenges the validity of his

conviction under 18 U.S.C. 922(g) based upon Rehaif v. United States, 139 S.Ct. 2191 (2019) and

allegations of ineffective assistance of counsel. (Id.) Specifically, Movant states as follows:

This is a Rehaif claim. I did not know I was prohibited. My counsel told me I had

to say I knew when I did not nor did I possess a gun. My FPD told me I had to say

I possessed a gun and that I knew I was a “prohibited person.” That was not true. I

did not understand the “plea agreement.”

(Id.) Additionally, Movant requested permission to amend his Section 2255 Motion to included

additional grounds. (Id., Document No. 160, pp. 5 – 7 and Document No. 161.) In support, Movant

stated that he had limited access to the law library due to COVID. (Id., Document No. 161.) By

Order entered on March 21, 2022, United States District Judge Robert C. Chambers granted

Movant’s Motion to Amend and directed that Movant file his Amended Section 2255 Motion by

April 18, 2022. (Id., Document No. 164.) Following the granting of two extensions of time,

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Movant filed his Supplemental Section 2255 Motion on June 30, 2022. (Id., Document Nos. 165

– 169.) In the Supplemental Section 2255 Motion, Movant asserts the following grounds:

(1) This is a Rehaif claim of ineffective assistance of counsel. I did not make

my plea knowingly and voluntarily.

(2) Ineffective Assistance of Counsel. I did not make my plea knowingly and

voluntarily.

(3) The trial court failed to sentence me pursuant to the First Step Act.

(4) The Court erred as the enhancements are incorrect.

(5) The Indictment is faulty.

(6) Ineffective assistance of counsel. This accusation covers Grounds 1 through

5.

(Id., Document No. 169.)

By Order entered on July 1, 2022, the undersigned directed court appointed counsel,

Federal Public Defender (“FPD”) Wesley P. Page, to file an affidavit responding to Movant’s

claims of ineffective assistance of counsel and the United States to file its Answer. (Id., Document

No. 170.) On July 26, 2022, FPD Page filed his Affidavit. (Id., Document No. 171.) On September

13, 2022, the United States filed its Response in Opposition to Movant’s Section 2255 Motion and

Supplemental Motion. (Id., Document No. 172.) On October 17, 2022, Movant filed his Reply.

(Id., Document No. 174.)

DISCUSSION

The relevant portion of Section 2255 provides as follows:

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, or that the court was

without jurisdiction to impose such sentence, or that the sentence was in excess of

the maximum authorized by law, or is otherwise subject to collateral attack, may

move the court which imposed the sentence to vacate, set aside or correct the

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sentence.

A motion made pursuant to Section 2255 is a collateral attack on a conviction or sentence. To

succeed on a Section 2255 motion, the movant must prove that “his sentence or conviction was

imposed in violation of the Constitution or law of the United States, that the court was without

jurisdiction to impose such a sentence, that the sentence exceeded the maximum authorized by

law, or that the sentence otherwise is subject to collateral attack.” 28 U.S.C. § 2255. “A motion

collaterally attacking a petitioner’s sentence brought pursuant to § 2255 requires the petitioner to

establish his grounds by a preponderance of the evidence.” Sutton v. United States, 2006 WL

36859, * 2 (E.D.Va. Jan. 4, 2006).

1. Ineffective Assistance of Counsel:

Indigent criminal defendants have the constitutional right to effective assistance of counsel

through direct appeal. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)

When a movant claims ineffective assistance of counsel as a basis for seeking relief under Section

2255, the burden is on the movant to prove that his trial attorney failed to render effective

assistance. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674

(1984). In Strickland, the Court adopted a two-pronged test for determining whether a defendant

received adequate assistance of counsel. Id. The first prong is competence. The movant must show

that the representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at

687 - 691, 104 S.Ct. at 2064 - 2066. There is a strong presumption that the conduct of counsel was

in the wide range of what is considered reasonable professional assistance, and a reviewing Court

must be highly deferential in scrutinizing the performance of counsel. Strickland, 466 U.S. at 688-

89, 104 S.Ct. at 2065 - 2066.

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A convicted defendant making a claim of ineffective assistance must identify the

acts or omissions of counsel that are alleged not to have been the result of

reasonable professional judgment. The court must then determine whether, in light

of all the circumstances, the identified acts or omissions were outside the wide

range of professionally competent assistance. . .. [C]ounsel is strongly presumed to

have rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment.

Strickland, 460 U.S. at 690, 104 S.Ct. at 2066. The Court will not second-guess an attorney’s

tactical decisions unless they appear unreasonable in view of all of the circumstances. Goodson v.

United States, 564 F.2d 1071, 1072 (4th Cir. 1977). The second prong is prejudice. The movant

must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068;

Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). An attorney’s mere

mistake, ignorance or inadvertence does not suffice for proof of ineffective assistance. Murray v.

Carrier, 477 U.S. 478, 106 S. Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986)(“So long as a defendant

is represented by counsel whose performance is not constitutionally ineffective under the standard

established in Strickland v. Washington, . . . we discern no inequity in requiring him to bear the

risk of attorney error that results in a procedural default.”) The movant must therefore show (1)

that his attorney’s performance was constitutionally inadequate, i.e., that he committed errors so

serious that his performance “fell below an objective standard of reasonableness” and (2) that his

attorney’s performance prejudiced him such that it rendered the proceeding fundamentally unfair

or made the result unreliable. Strickland, 466 U.S. at 687 - 88, 104 S.Ct. at 2064 - 2065; Fitzgerald

v. Thompson, 943 F.2d. 463 (4th Cir. 1991), cert. denied, 502 U.S. 1112, 112 S.Ct. 1219, 117

L.Ed.2d 456 (1992).

A court must hold an evidentiary hearing on a Section 2255 Motion “[u]nless the motion

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and the files and records of the case conclusively show that the prisoner is entitled to no relief.”

28 U.S.C. § 2255(b). Generally, whether to hold an evidentiary hearing is left to the sound

discretion of the district court. Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970). When a

movant presents a colorable Sixth Amendment claim showing disputed facts beyond the record

and a credibility determination is necessary to resolve the issue, an evidentiary hearing is required.

See Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000); also see Raines v. United States, 423 F.2d

526, 530 (4th Cir. 1970). There, however, “is no prohibition against a court making credibility

determinations based on competing affidavits in certain circumstances.” Strong v. Johnson, 495

F.3d 134, 139 (4th Cir. 2007)(“Choosing between conflicting affidavits without a hearing may be

reasonable when one affidavit is cryptic or conclusory with respect to a contested issue of fact and

the other affidavit sets out a detailed account of events.”); also see United States v. Perez, 393 F.3d

457, 464 (4th Cir. 2004)(a court may discount “unsupported, conclusory statements” in an

affidavit). The Fourth Circuit has explained that although a district court has before it conflicting

affidavits, no evidentiary hearing is required where such would add nothing to the proceedings.

United States v. Barsanti, 943 F.2d 428, 440 (4th Cir. 1991); also see United States v. Santana, 263

Fed.Appx. 334, 335 (4th Cir. 2008)(“[I]t is not per se error for a district court to make credibility

determinations on the basis of conflicting affidavits . . .”). “Holding an evidentiary hearing in those

cases merely for the sake of holding an evidentiary hearing would squander scarce judicial

resources that may be better utilized elsewhere.” Dryer v. United States, 2016 WL 1019438, * 6

(S.D.W.Va. Feb. 19, 2016).

Based upon a review of the entire record and the affidavits, the undersigned finds that the

above case is one where an evidentiary hearing is not required. The undersigned notes Movant’s

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Affidavit on the foregoing issues is vague and conclusory, while FPD Page’s statements are much

more detailed (See Civil No. 3:22-00140, Document No. 171 and Document No. 174, , pp. 4 - 5.)

Movant’s vague, conclusory, and self-serving statements are less credible than the more detailed

version provided by FPD Page. The undersigned further notes that Movant’s sworn Affidavits is

contradictory to sworn statements made during his Plea Hearing. Additionally, FPD Page’s

Affidavit is consistent with Movant’s sworn statements as made during the Plea Hearing.

A. Counsel’s alleged ineffectiveness regarding Movant’s “Rehaif claim” and

unknowing and involuntary plea.

In his Motion and Supplemental Motion, Movant alleges that he is asserting a “Rehaif

claim” based upon ineffective assistance of counsel. (Civil Action No. 3:22-00140, Document

Nos. 160 and 169.) Movant states that his plea was not “knowingly and voluntary.” (Id.) Movant

explains that he did not know he was a “prohibited person and [his] defense counsel told [him]

that [he] had to say to the court that [he] knew [he] was a ‘prohibited person’ and that [he]

possessed a gun.” (Id.) Movant states “[t]his was not true.” (Id.) Movant alleges that he “did not

know [he] was a prohibited person nor did [he] possess a gun.” (Id.) Movant states that he “did not

understand the ‘plea agreement.’” (Id.) Finally, Movant argues that the Indictment was faulty

because all elements were not charged as required by Rehaif. (Id.)

In his Affidavit, FPD Page first states that he “spent a great deal of time with [Movant]

reviewing discovery and discussing plea negotiation strategy, with a total of ten (10) meetings at

Carter County Detention Center taking place prior to the guilty plea hearing.” (Id., Document No.

171, p. 4.) FPD Page explains that it is his “practice to review, line-by-line, the plea colloquy of

the presiding district judge prior to a client signing a plea agreement or filing a motion to schedule

a guilty plea hearing ‘straight up’ to an indictment.” (Id.) FPD Page states that “[during those

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meetings, including the meeting with [Movant], counsel does not tell the client that he or she must

say anything – it is explained that the decision as to whether to plead guilty or go to trial is the

client’s decision alone.” (Id.) FPD Page asserts that he “does explain, and reviews in detail by

reviewing the transcript from a previous guilty plea hearing before the presiding judge, that before

the Court will accept a guilty plea, the judge will ask a number of questions to satisfy him- or her-

self that the defendant is competent, that he understands the nature of the charges against him and

the consequences of pleading guilty, that he understands the constitutional and other legal rights

he gives up by pleading guilty, that there is a factual basis for the plea, and that the plea is

voluntary.” (Id., pp. 5 – 6.) Specific to Movant, FPD Page states he “would have explained to

[Movant] that if he wished to plead guilty to being a Felon in Possession of a Firearm in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), then he would have to admit, under oath and in open

court, that he knew he had a prior conviction punishable by a term of imprisonment exceeding one

year, and that he knowingly possessed the gun.” (Id., p. 5.) FPD Pages notes that relevant to the

issue of whether Movant had a qualifying prior conviction, Movant (1) “served approximately 6

years before making parole following a 1996 conviction in Detroit, Michigan, for Assault with

Intent to do Great Bodily Harm Less than Murder and Weapons – Felony Firearm,” and (2) “served

almost 5 years in prison following a 2010 guilty plea to Voluntary Manslaughter in Cabell County,

West Virginia.” (Id.) As on the foregoing, FPD Page acknowledges that he would have explained

to Movant “that he could not plausibly deny this element.” (Id.) As to Movant’s possession of a

gun, FPD Page states that he “would have explained the concept of constructive possession to

[Movant] prior to any decision to plead guilty.” (Id.) FPD Page notes that “[t]he gun was found in

the console of the couch (along with his ID) where [Movant] was observed to be sitting when

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police entered the house with a search warrant.” (Id.) FPD Page contends “[t]hose facts support a

plea to being a felon in possession of a firearm based on a theory of constructive possession.” (Id.)

FPD Page asserts that “based on the law and the facts, counsel explained to [Movant] what options

he had and what would be required of him if he wished to plead guilty.” (Id., p. 6.) FPD Page states

that he “exerted no pressure on [Movant] to plead guilty or admit facts that were untrue or could

not be proven in order to talk him into pleading guilty against his will.” (Id.)

In Response, the United States argues that Movant cannot establish ineffective assistance

of counsel because Movant has failed to show that FPD Page’s performance was deficient. (Id.,

Document No. 172, pp. 4 – 6.) The United States explains that Movant’s Indictment was returned

after the United States Supreme Court rendered its decision in Rehaif. (Id., p. 7.) The United States

notes that Count Two of the Indictment included the relevant language required under Rehaif. (Id.)

Thus, the United States argues that the Indictment returned against Movant was not defective

because it “properly alleges all the elements of possession of a firearm by a prohibited person

under § 922(g)(1).” (Id., pp. 7 – 8.) Second, the United States argues that Movant’s claim that he

is actually innocent of violating Section 922(g)(1) because he lacked knowledge that he belonged

to a category of persons barred from possessing a firearm is without merit. (Id., p. 8.) The United

States explains that the record clearly demonstrates that Movant “was fully aware that knowledge

of status is a required element under § 922(g)(1).” (Id., pp. 8 – 11.) The United States asserts that

the record belies Movant’s claim that his plea was not knowingly and voluntarily. (Id.) The United

States notes that FPD Page’s Affidavit explains that the elements for a Section 922(g) conviction

were thoroughly explained to Movant. (Id., p. 11.) The United States further notes that the Court

explained each element to Movant prior to accepting his guilty plea. (Id., pp. 11 – 12.) Thus, the

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United States contends that the “record reflects that [Movant] was fully apprised of and understood

all of the elements of his offense, including the knowledge element, before his guilty plea was

entered.” (Id., p. 12.) The United States further states that “[t]he record also demonstrates that

[Movant] admitted to the knowledge element at issue.” (Id.) The United States, therefore,

concludes that Movant’s guilty plea was made knowingly and voluntarily and “Rehaif affords

[Movant] no relief in his knowledge argument.” (Id.)

In Reply, Movant fails to address the arguments made by the United States. (Id., Document

No. 174.) Instead, Movant argues for the first time that the “Government has brought forth an ex

post facto violation.” (Id., pp. 1 – 2.) Movant argues that the date of his offense was May 2019,

which was prior to the Supreme Court’s decision in Rehaif. (Id.) Thus, Movant concludes that

“[t]he knowledge status element (felon) was not known to [Movant] at the time of the offense so

to make criminal of conduct prior to Rehaif violates ex post facto.” (Id., pp. 1 – 2.)

In his Affidavit, Movant first states that the date of his offense was in May 2019, prior to

the ruling of Rehaif. (Id., p. 4.) Second, Movant states that he “did not know he belonged to a class

of persons barred from possessing a firearm, nor did [Movant] have a hearing to determine if he

was a person banned from possessing a firearm.” (Id.) Finally, Movant states that “[n]o court ever

put [Movant] on notice that he was part of a certain class of people who are prohibited from

possessing a firearm.” (Id., p. 5.)

The undersigned finds that Movant’s above argument that FPD Page acted ineffectively

regarding his “Rehaif claim,” is without merit. The Supreme Court decided Rehaif on June 21,

2019, which was prior to Movant’s Indictment on August 14, 2019. In Rehaif, the Supreme Court

held that the government must prove both that the defendant knew he possessed a firearm and that

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he knew he belonged to the relevant category of persons barred from possessing a firearm. Rehaif

v. United States, 588 U.S. 225, 139 S.Ct. 2191, 204 L.Ed.2d 594 (2019). The prosecution for

unlawful possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2) has always

required proof that the defendant was ineligible to possess a firearm if he fell within one of the

categories of prohibited persons described in Section 922(g). Id. After Rehaif, the government is

also required to prove that the defendant “knew he fell within the relevant status (that he was a

felon . . .)” when the possessed the firearm. Id., 588 U.S. at 227, 139 S.Ct. at 2194. A review of

the Indictment reveals that Count Two properly alleged all the elements required by Rehaif.

Specifically, Count Two of the Indictment charged Movant as follows:

1. On or about May 7, 2019, at or near Huntington, Cabell County, West

Virginia, and within the Southern District of West Virginia, defendant GEORGE

MARSHALL LOCKHART also known as “G-Ride,” also known as “G-Rod,” also

known as “Real,” knowingly possessed a firearm, that is, a .45 caliber Smith &

Wesson handgun, in and affecting interstate commerce.

2. At the time defendant GEORGE MARSHALL LOCKHART also known as

“G-Ride,” also known as “G-Rod,” also known as “Real,” possessed the aforesaid

firearm, he knew he had been convicted of a crime punishable by imprisonment for

a term exceeding one year, as defined in 18 U.S.C. § 921(a)(20), that is, convicted

on or about January 14, 2011, in the Circuit Court of Cabell County, West Virginia

of the felony offense of Voluntary Manslaughter in violation of W.Va. Code § 61-

2-4.

In violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2).

(Criminal Action No. 3:19-00201, Document No. 1, p. 3.) The undersigned finds that Movant’s

Indictment properly alleged all elements as required by Rehaif. Thus, the Indictment returned

against Movant was not defective in light of Rehaif and FPD Page was not ineffective in failing to

assert a “Rehaif claim.”

Next, the undersigned considers Movant’s claim that he is actually innocent of Count Two

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because Movant did not know he was a prohibited person and he did not possess a firearm. Movant

contends that FPD Page was ineffective because FPD Page told Movant he would have “to say to

the court that [he] knew [he] was a ‘prohibited person’ and that [he] possessed a gun.” In this

undisputed Affidavit, FPD Page states he “would have explained to [Movant] that if he wished to

plead guilty to being a Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2), then he would have to admit, under oath and in open court, that he knew he had a prior

conviction punishable by a term of imprisonment exceeding one year, and that he knowingly

possessed the gun.” (Civil Action No. 3:22-00140, Document No. 171, p. 5.) FPD Page, however,

states that he “exerted no pressure on [Movant] to plead guilty or to admit facts that were untrue

or could not be proven in order to talk him into pleading guilty against his will.” (Id.) Additionally,

a review of the record contradicts Movant’s claim that he is actually innocent because Movant did

not know he was a prohibited person and he did not possess a firearm. During the Plea Hearing,

the District Court ensured that Movant’s guilty plea was both intelligent and voluntary. (Criminal

Action No. 3:19-00201, Document No. 139, p. 6.) During the Rule 11 colloquy, Movant confirmed

he fully understood the proceedings and was completely satisfied with his attorney. (Id., pp. 4 –

5.) The District Court thoroughly reviewed the terms of the plea with Movant and he acknowledged

that he understood the terms and consequences of signing the plea of guilty to the Indictment. (Id.,

pp. 5 – 6.) The District Court read the Indictment to Movant and thoroughly explained to Movant

the elements the United States would have to prove beyond a reasonable doubt to convict Movant

of Counts One and Two. (Id., pp. 4 – 7, 11 – 12.) Movant affirmed he understood all elements,

believed he was guilty of both counts, and Movant set forth in his own words what he did to make

him guilty of both Counts. (Id., pp. 7 – 14.) Regarding the factual basis to support Count Two

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(Felon in Possession of a Firearm), the following colloquy occurred between the District Court

and Movant:

THE COURT: What did you do that makes you guilty of Count Two?

THE DEFENDANT: I was staying at 23rd Street and had a firearm in the house.

THE COURT: Is that 23rd Street here in Huntington, Cabell County, West

Virginia?

THE DEFENDANT: Yes.

THE COURT: And what kind of firearm did you have?

THE DEFENDANT: A 45-caliber.

THE COURT: All right. And on what date were you in possession of this

firearm?

THE DEFENDANT: May 7, 2019.

THE COURT: All right. So on May 7, 2019, you were - - was that an

apartment or a house or something?

THE DEFENDANT: A house.

THE COURT: All right. So you were at a house here in Huntington. Did

you have this firearm literally in your possession on you?

THE DEFENDANT: No.

THE COURT: Were you keeping it there?

THE DEFENDANT: No.

THE COURT: Well - -

THE DEFENDNAT: Oh, was I keeping it at the house?

THE COURT: Yes.

THE DEFENDANT: Yes.

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THE COURT: Were you living in the house?

THE DEFENDANT: From time to time.

THE COURT: From time to time? All right. Did the police come that day?

THE DEFENDANT: Yes.

THE COURT: And they found the gun?

THE DEFEDANT: Yes.

THE COURT: So this was your gun?

THE DEFENDANT: Yes.

THE COURT: And had you previously been convicted in Cabell County

Circuit Court of voluntary manslaughter back in 2011?

THE DEFENDNAT: Yes.

THE COURT: And as a result, you knew you were not allowed to possess a

firearm?

THE DEFENDANT: Yes.

THE COURT: But you did know on this day in May that you were in

possession of a firearm?

THE DEFENDANT: Yes.

(Id., pp. 14 – 16.) Thus, Movant clearly admitted under oath during the plea colloquy that he knew

at the time he possessed the firearm that he belonged to a category of persons barred from

possessing a firearm. The foregoing clearly contradicts Movant’s self-serving claim that he did not

possess a gun or know that he was a “prohibited person” at the time he allegedly possessed the

gun. The Fourth Circuit has recognized that “[i]n the absence of extraordinary circumstances, the

truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district

court should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily

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relies on allegations that contradict the sworn statements. Otherwise, a primary virtue of Rule 11

colloquies would be eliminated - ‘permit[ting] quick disposition of baseless collateral attacks.”

United States v. LeMaster, 403 F.3d 216, 220 (4th Cir. 2005). Movant further affirmed during the

Rule 11 colloquy that his guilty plea was voluntary. (Criminal Action No. 3:19-00201, Document

No. 139, p. 28.) Specifically, the following colloquy occurred between the District Court and

Movant:

THE COURT: Has anyone forced you, threatened you or talked you into

pleading guilty against your will?

THE DEFENDANT: No.

THE COURT: Are you acting voluntarily - -

THE DEFENDANT: Yes, I am.

THE COURT: - - and of your own free will in entering this guilty plea?

THE DEFENDANT: Yes, I am.

THE COURT: Is pleading guilty your own idea?

THE DEFENDANT: Yes.

THE COURT: Has anyone promised you something or told you - -

THE DEFENDANT: No.

THE COURT: - - anything different from what we have discussed here in

court today to get you to plead guilty?

THE DEFENDANT: No.

(Id.) Based upon the foregoing, the undersigned finds that the record reveals that Movant’s plea of

guilty was made voluntarily and knowingly. Furthermore, there is no Rehaif violation as Movant

clearly admitted the knowledge element regarding his felon in possession of a firearm conviction.

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Accordingly, the undersigned respectfully recommends that Movant’s above claims be denied.

B. Alleged ineffectiveness regarding the First Step Act.

In his Supplemental Section 2255 Motion, Movant states that the “trial court failed to

sentence me pursuant to the First Step Act” and counsel was ineffective regarding the foregoing.

(Civil Action No. 3:22-00140, Document No. 169, p. 2.) In support, Movant states that “[i]f Glover

and the (FSA) had been followed I would have received a more favorable sentence. The FPD

allowed this to occur when he should not of done so.” (Id.)

In his Affidavit, FPD Page first explains that the First Step Act was signed into law on

December 21, 2018. (Id., Document No. 171, p. 8.) FPD Pages, therefore, states that the provisions

of the First Step Act had been “completely implemented” at the time of Movant’s sentencing “such

that [Movant] received the full benefit of any provision to which he was entitled without the need

for additional action on the part of undersigned counsel.” (Id.) Finally, FPD Page states that he is

“unfamiliar with Glover v. United States” and “[a]bsent additional information regarding Glover

(such as a legal citation) or the provision of the First Step Act of which [Movant] believes he was

deprived, counsel is unable to more fully respond to this ground.” (Id.)

In Response, the United States notes that Movant “does not state why or how the First Step

Act should have been applied at his sentencing.” (Id., Document No. 172, p. 12.) The United States

contends that since the First Step Act “had been implemented by [Movant’s] sentencing, no action

was required of Attorney Page.” (Id.) Movant failed to address the foregoing in his Reply. (Id.,

Document No. 174.)

In the instant case, Movant asserts no facts supporting this claim of ineffective assistance

of counsel or explains how the District Court erred in regards to First Step Act. Movant’s

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conclusory allegation regarding the First Step Act is insufficient. A movant must make specific

allegations establishing reason to believe that, if the facts are fully developed, he is entitled to

relief. United States v. Roane, 378 F.3d 382, 403 (4th Cir. 2004). Movant, however, fails to explain

how counsel acted ineffectively and how Movant was prejudiced by such conduct. The Fourth

Circuit has recognized that “vague and conclusory allegations contained in a § 2255 petition may

be disposed of without further investigation by the District Court.” United States v. Dyess, 730

F.3d 354, 359 (4th Cir. 2013)(citing United States v. Thomas, 221 F.3d 430, 437 (3rd Cir. 2000));

also see Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1997)(the

“presentation of conclusory allegations unsupported by specifics is subject to summary

dismissal”); United States v. Hawkins, 531 Fed.Appx. 342, 345 (4th Cir. 2014)(citation

omitted)(“Conclusory allegations are insufficient to raise cognizable claims of ineffective

assistance of counsel.”); United States v. McClellan, 2017 WL 2822315 (3rd Cir. Jan. 3,

2017)(finding petitioner’s conclusory allegations of the ineffective assistance of counsel were

insufficient); United States v. Faria, 268 Fed.Appx. 730 (10th Cir. 2008)(conclusory allegations of

ineffective assistance of counsel were insufficient to warrant habeas relief); Jones v. Gomez, 66

F.3d 199, 204 (9th Cir. 1995)(finding habeas relief was unwarranted based on “conclusory

allegations which are not supported by a statement of specific facts”); Andiarena v. United States,

967 F.2d 715, 719 (1st Cir. 1992)(finding summary dismissal appropriate where petitioner’s claim

was “wholly conclusory”). The undersigned notes that at the time of the filing of Movant’s Section

2255 Motion, Movant requested additional time to amend or supplement his Section 2255 Motion.

Importantly, Movant’s Motion to Amend was granted and Movant filed his Supplemental Section

2255. (Civil Action No. 3:22-00140, Document Nos. 164, 166, 168, 169.) Thus, the record is void

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of any indication that Movant’s ability to supplement his Section 2255 has been inhibited since

the filing of his Section 2255 Motion. Movant’s above claims of erroneous sentencing under the

First Step Act and ineffective assistance of counsel are conclusory and fail to state a cognizable

claim. Based upon the foregoing, the undersigned respectfully recommends that Movant’s above

claims be dismissed.

C. Alleged ineffectiveness as to sentencing enhancements.

In his Supplemental Section 2255 Motion, Movant states that the “Court erred as the

enhancements are incorrect” and counsel was ineffective regarding the foregoing. (Civil Action

No. 3:22-00140, Document No. 169, p. 2.) In support, Movant states as follows: “Both charges

used as predicates to enhance my sentence are too broad to categorize as violent crimes pursuant

to United States v. Mathis, divisibility issues. See Borden v. United States, mens rea. I should not

of been the category the court came to in its final determination.” (Id.)

In his Affidavit, FPD Page first explains that he “understands this ground as relating to the

calculation of [Movant’s] Base Offense Level of 24 under U.S.S.G. § 2K2.1(a)(4)(A) based on his

prior convictions of Assault with the Intent to do Great Bodily Harm Less than Murder in Michigan

in 1996 and Voluntary Manslaughter in West Virginia in 2010.” (Id., Document No. 171, p. 9.)

Citing Raybon v. United States, 867 F.3d 625 (6th Cir. 2017), FPD Page contends that at the time

of Movant’s sentencing it was well established by the Sixth Circuit that Assault with the Intent to

do Great Bodily Harm Less than Murder in violation of Mich. Comp. Laws § 750.84(1)(a) was “a

specific intent crime that categorially qualifies as a crime of violence under the Sentencing

Guidelines.” (Id.) Concerning Movant’s Voluntary Manslaughter conviction, FPD Page states that

“that crime is an enumerated offense as set forth in U.S.S.G. § 4B1.2(a)(2).” (Id.) FPD Page

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contends that he is “unaware of any case law, binding or otherwise, that would call either of those

positions into question.” (Id.) As to Movant’s citation to Borden, FPD Page notes that Borden was

noted decided until well after Movant’s sentencing and such could not give rise to an ineffective

assistance of counsel claim. (Id.) Furthermore, FPD Page states that “even if Borden had been

decided prior to [Movant’s] sentencing, it would be of no help to him” because “Borden held that

offenses with a mens rea recklessness do not qualify as violent felonies under the Armed Career

Criminal Act.” (Id., pp. 9 – 10.) FPD Page notes that Borden is inapposite because neither of

Movant’s “predicate convictions can be committed with a mens rea of recklessness.” (Id., p. 10.)

In Response, the United States argues that Movant’s claim that “the enhancements are

incorrect” is without merit. (Id., Document No. 172, pp. 12 - 13.) Citing Raybon, the United States

argues that Movant’s Michigan conviction for Assault with Intent to do Great Bodily Harm Less

than Murder is a specific intent crime that qualifies as a crime of violation under the Sentencing

Guidelines. (Id., p. 13.) As to Movant’s predicate conviction for Voluntary Manslaughter, the

United States notes that such is an enumerated offense as set forth in U.S.S.G. § 4B1.2(a)(2). (Id.)

Therefore, the United States concludes that Movant’s above claim is without merit because the

Court applied the correct offense level based upon Movant’s prior convictions. (Id.)

In Reply, Movant argues that “the 2 point enhancement for having a firearm during the

commission of a felony was erroneously applied because it was already calculated in the Criminal

History score.” (Id., Document No. 174, p. 2.)

The undersigned finds that Movant’s challenge to his “sentence enhancements” is without

merit. To the extent Movant is challenging his Base Offense Level as to his Felon in Possession

of a Firearm offense, the undersigned will consider whether the District Court erred and FPD Page

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was ineffective in his representation. The record reveals that the District Court determined Movant

had a Base Offense Level of 24 because Movant had at least two felony convictions involving a

crime of violence: (1) An October 11, 1996 conviction in Michigan for Assault with Intent to do

Great Bodily Harm Less than Murder; and (2) A December 7, 2010 conviction in West Virginia

for Voluntary Manslaughter. (Criminal Action No. 3:19-00201, Document No. 132, p. 9.) As

explained by FPD Page and the United States, Raybon was decided in 2017 prior to Movant’s

sentencing. Raybon clearly held that a prior Michigan conviction for assault with intent to do great

bodily harm less than murder qualifies as a crime of violence. Raybon, 867 F.3d at 632.

Additionally, voluntary manslaughter is an enumerated crime of violence offense under U.S.S.G.

§ 4B1.2(a)(2). See U.S.S.G. § 4B1.2(a)(2). The undersigned, therefore, finds that Movant’s claim

that the District Court erred or that FPD Page was ineffective regarding the determination of the

Base Offense Level for his Felon in Possession of a Firearm offense, is without merit. To the extent

Movant is arguing that his two prior convictions for crimes of violence (Assault with Intent to do

Great Bodily Harm Less than Murder and Voluntary Manslaughter) were improperly used to

determine both his Base Offense Level for Count Two (Felon in Possession of a Firearm) and his

Criminal History Score, such an argument is without merit. The Guidelines permit the district court

to consider a defendant’s prior felony convictions in calculating both his offense level under

Section 2K2.1(a) and his criminal history category. See U.S.S.G. § 2K2.1, Comment No. 10(noting

that prior felony conviction(s) resulting in an increased base offense level under Section

2K2.1(a)(1), (a)(2), (a)(3), (a)(4)(A), (a)(4)(B), or (a)(6) are also counted for purposes of

determining criminal history points); also see United States v. Lopez, 70 F.4th 325 (5th Cir.

2023)(finding that the district court’s use of defendant’s prior robbery conviction both to

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enhancement his base offense level and to increase his criminal history score did not amount to

impermissible double counting); United States v. Dawkins, 161 Fed.Appx. 260, 261 (4th Cir.

2006)(stating that “double counting is permissible under the federal sentencing guidelines except

where it is expressly prohibited”). Based upon the foregoing, the undersigned respectfully

recommends that Movant’s above claims regarding his “sentencing enhancements” be denied.

2. Ex Post Facto Clause Violation:

In his Reply, Movant asserts an Ex Post Facto Clause violation. (Civil Action No. 3:22-

00140, Document No. 174.) Movant argues Rehaif retroactively criminalized his conduct by

changing the scope of Sections 922(g) and 924(a)(2). (Id.) First, the undersigned notes that Movant

inappropriate asserts this claim for the first time in his Reply. Second, such a claim would be

procedurally barred. It is undisputed that Movant did not file a direct appeal asserting his Ex Post

Facto Clause claim based on Rehaif. The filing of a Section 2255 motion does not supplant or

obviate the need to file a direct appeal. Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982

(1947). The United States Supreme Court explains that “a final judgment commands respect. For

this reason, we have long and consistently affirmed that a collateral challenge may not do service

for an appeal.” United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816

(1982). A non-constitutional claim that could have been, but was not, raised on direct appeal may

not be raised for the first time in a Section 2255 motion. Stone v. Powell, 428 U.S. 465, 478 n. 10

(1976). A constitutional claim that could have been, but was not, raised on direct appeal may not

be raised for the first time in a Section 2255 motion unless the movant can show either (1) “cause

and actual prejudice resulting from the errors of which he complains,” or (2) “he must demonstrate

that a miscarriage of justice would result from the refusal of the court to entertain the collateral

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attack.” United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999). “The existence of

cause for a procedural default must turn on something external to the defense, such as the novelty

of the claim or a denial of effective assistance of counsel.” Id. at 493. Actual prejudice is shown

by demonstrating that the error worked to movant’s “actual and substantial disadvantage,” rather

than just creating a possibility of prejudice. See Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir.

1997)(quoting Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397

(1986)). “In order to demonstrate that a miscarriage of justice would result from the refusal of the

court to entertain the collateral attack, a movant must show actual innocence by clear and

convincing evidence. Mikalajunas, 186 F.3d at 493. “Typically, to establish actual innocence, a

petitioner must demonstrate actual factual innocence of the offense of conviction, i.e., that

petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a

showing that a petitioner is legally, but not factually, innocent. Id. at 494. The movant must show

that “it is more likely than not that no reasonable juror would have convicted him.” Schlup v. Delo,

513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Movant has neither established cause and

actual prejudice resulting nor demonstrate that a miscarriage of justice would result from the

refusal of the court to consider the claim. Notwithstanding the foregoing, the undersigned finds

that Movant’s Ex Post Facto Clause claim is without merit. As explained above, Rehaif merely

clarified the government’s burden to obtain a conviction under Sections 922(g) and 924(a)(2).

Rehaif did not change the categories of persons who could be prosecuted under Section 922(g).

United States v. Renteria, 2022 WL 2833978, * 3 (S.D.Cal. July 20, 2022)(rejecting defendant’s

argument that when he committed the alleged crime, “it was in a pre-Rehaif environment . . . and

[Rehaif] changed the way new § 922(g) cases needed to be worded” resulting in an ex post facto

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violation); Mathis v. United States, 2021 WL 1783285, * 3 (D.N.J. May 5, 2021)(stating that

Rehaif merely creates “a procedural rule clarifying the Government’s burden to obtain a conviction

under § 922(g)” and not the class of people covered by the statute); United States v. Whitmire,

2020 WL 4333480, * 2 (S.D. Ohio July 28, 2020)(“Rehaif does not change at all those persons

who can be prosecuted under § 922(g) . . . [T]he same class of people now as before Rehaif is

prohibited from possessing a firearm . . . .”). Since Rehaif did not change the categories of persons

who could be prosecuted under Section 992(g), Rehaif did not criminalize Movant’s actions in

violation of the Ex Post Facto Clause. Based upon the foregoing, the undersigned respectfully

recommends that Movant’s above claim be denied.

PROPOSAL AND RECOMMENDATION

Accordingly, the undersigned respectfully proposes that the District Court confirm and

accept the foregoing findings and RECOMMENDS that the District Court DENY Movant’s

Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal

Custody and Supplemental Section 2255 Motion (Document Nos. 160 and 169) and REMOVE

this matter from the Court’s docket.

Movant is notified that this Proposed Findings and Recommendation is hereby FILED,

and a copy will be submitted to the Honorable United States District Judge Robert C. Chambers.

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), Rule 8(b) of the

Rules Governing Proceedings in the United States District Courts Under Section 2255 of Title 28,

United States Code, and Rule 45(c) of the Federal Rules of Criminal Procedure, the parties shall

have fourteen days (filing of objections) and three days (if received by mail) from the date of filing

of these Findings and Recommendation within which to file with the Clerk of this Court, written

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objections, identifying the portions of the Findings and Recommendation to which objection is

made, and the basis of such objection. Extension of this time period may be granted for good cause

shown.

Failure to file written objections as set forth above shall constitute a waiver of de novo

review by the District Court and a waiver of appellate review by the Circuit Court of Appeals.

Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466,

88 L. Ed. 2d 435 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States _v.

Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208, 104 S. Ct. 2395, 81 L.Ed. 2d

352 (1984). Copies of such objections shall be served on opposing parties, District Judge

Chambers, and this Magistrate Judge.

The Clerk is requested to send a copy of this Proposed Findings and Recommendation to

Movant, who is acting pro se, and counsel of record.

Date: September 16, 2024. SE of hed

QS mrs 5 LS United States Magistrate Judge

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