United States v. Allgood

48 F. Supp. 2d 554, 1999 U.S. Dist. LEXIS 6173, 1999 WL 258408
CourtDistrict Court, E.D. Virginia
DecidedApril 27, 1999
DocketCiv. No. 2:98CV952. Crim. No. 2:90cr128
StatusPublished
Cited by11 cases

This text of 48 F. Supp. 2d 554 (United States v. Allgood) 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
United States v. Allgood, 48 F. Supp. 2d 554, 1999 U.S. Dist. LEXIS 6173, 1999 WL 258408 (E.D. Va. 1999).

Opinion

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 All-good 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 *558 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 mis *559 carriage 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,

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Bluebook (online)
48 F. Supp. 2d 554, 1999 U.S. Dist. LEXIS 6173, 1999 WL 258408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-allgood-vaed-1999.