Pemberton v. United States

352 F. Supp. 3d 610
CourtDistrict Court, E.D. Virginia
DecidedJanuary 9, 2019
DocketCRIMINAL NO. 4:17cr50-3; CIVIL NO. 4:18cv90
StatusPublished

This text of 352 F. Supp. 3d 610 (Pemberton v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pemberton v. United States, 352 F. Supp. 3d 610 (E.D. Va. 2019).

Opinion

ROBERT G. DOUMAR, UNITED STATES DISTRICT JUDGE

*612This 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.

I. FACTUAL AND PROCEDURAL HISTORY

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.

II. PETITIONER'S § 2255 MOTION

A. STANDARD OF REVIEW

28 U.S.C. § 2255 allows a federal prisoner to move to "vacate, set aside or correct"

*613a 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

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Related

Davis v. United States
417 U.S. 333 (Supreme Court, 1974)
United States v. Frady
456 U.S. 152 (Supreme Court, 1982)
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Hill v. Lockhart
474 U.S. 52 (Supreme Court, 1985)
Houston v. Lack
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Bousley v. United States
523 U.S. 614 (Supreme Court, 1998)
Miller-El v. Cockrell
537 U.S. 322 (Supreme Court, 2003)
Massaro v. United States
538 U.S. 500 (Supreme Court, 2003)
Edward Donald Miller v. United States
261 F.2d 546 (Fourth Circuit, 1958)
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887 F.2d 1001 (Ninth Circuit, 1989)
United States v. Jose Gerardo Munoz-Fabela
896 F.2d 908 (Fifth Circuit, 1990)
United States v. Jackie Ray Hill
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Paul Erik Myers v. United States
993 F.2d 171 (Eighth Circuit, 1993)
United States v. Ricky C. Nelson
27 F.3d 199 (Sixth Circuit, 1994)
United States v. Darryl Pernell Camps
32 F.3d 102 (Fourth Circuit, 1994)
United States v. Thomas Lee Farmer
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United States v. Hilton A. Lake, Hilton A. Lake
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Bluebook (online)
352 F. Supp. 3d 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pemberton-v-united-states-vaed-2019.