Atkinson v. United States

JAMES ATKINSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Crim. Action No. RDB-18-0205

Civil Action No. RDB-20-3762

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

May 27, 2021

MEMORANDUM OPINION

On August 23, 2018, pro se Petitioner James Atkinson ("Atkinson" or "Petitioner") pled guilty to one count of interference with commerce by robbery, in violation of 18 U.S.C. § 1951 ("Hobbs Act robbery"), and one count of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).¹ (Plea Agreement, ECF No. 29.) ThisCourt sentenced Petitioner to a total term of 144 months of imprisonment followed by a five-year period of supervised release. (Judgment, ECF No. 43.) This sentence was as agreed by Atkinson and the Government pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Currently pending before this Court is Petitioner's pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (ECF No. 61.) The Government has filed a Response in opposition. (ECF No. 65.) The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the reasons that follow, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 61) is DENIED.

BACKGROUND

On April 12, 2018, a grand jury indicted James Atkinson one count of interference with commerce by robbery, in violation of 18 U.S.C. § 1951 (Count 1), and one count of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 2). (Indictment, ECF No. 1.) On August 23, 2018, Atkinson pled guilty to both Counts of the Indictment. (Plea Agreement, ECF No. 29.) Atkinson stipulated that on the night of February 23, 2018, he visited a rental car company asking for a security deposit back for a car he returned that had bullet holes in it. (Id., Attachment A.) When the clerk refused Atkinson's request, Atkinson pointed a gun at the clerk and robbed him of money from his desk and wallet, as well as his phone. (Id.) Atkinson also stole the keys to a 2010 Hyundai rental car. (Id.) Before driving away in the stolen Hyundai, Atkinson used a stun gun to shock the clerk for several minutes and then ordered him into the adjacent room. (Id.) After Atkinson left, the clerk called 911 and cancelled his credit cards. (Id.) Subsequentinvestigation determined that Atkinson had attempted to use the stolen credit cards. (Id.) In the Plea Agreement, Atkinson also waived his right to appeal his conviction and sentence. (Id. ¶ 10.)

This Court conducted a Sentencing Hearing on March 1, 2019. (ECF No. 42.) At sentencing, this Court reviewed the Presentence Investigation Report ("PSR") with Atkinson, his counsel, and the Government. (3/1/2019 Sentencing Tr., ECF No. 56; PSR, ECF No. 39; Amended PSR, ECF No. 45.) The PSR reflected a total offense level of 29, a criminal history category of VI and that Atkinson is career offender, resulting in an advisory guideline range of 262 to 327 months. (PSR ¶ 80.) Under the Rule 11(c)(1)(C) plea agreement, the parties agreed that a sentence of 144 months' imprisonment was the appropriate disposition of this case. (Plea Agreement, ECF No. 29.) Based on these factors, this Court sentenced Atkinson to a total term of 144 months' imprisonment, followed by a five-year period of supervised release. (Judgment, ECF No. 43.)

On September 16, 2019, Atkinson appealed his sentence to the United States Court of Appeals for the Fourth Circuit. (See Notice of Appeal, ECF No. 51.) On April 20, 2020, the Fourth Circuit affirmed Atkinson's conviction and sentence in this case. (ECF No. 58.); United States v. Atkinson, 801 Fed. App'x 196 (Mem.) (4th Cir. Apr. 20, 2020). On December 29, 2020, Atkinson filed the presently pending Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (ECF No. 61.)

STANDARD OF REVIEW

This Court recognizes that the Petitioner is pro se and has accorded his pleadings liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197 (2007). Under 28 U.S.C.§ 2255, a prisoner in custody may seek to vacate, set aside, or correct his sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to a collateral attack. Hill v. United States, 368 U.S. 424, 426-27, 82 S. Ct. 468 (1962) (citing 28 U.S.C. § 2255). "If the court finds . . . that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).

The scope of a § 2255 collateral attack is far narrower than an appeal, and a "'collateral challenge may not do service for an appeal.'" Foster v. Chatman, 136 S. Ct. 1737, 1758 (2016) (quoting United States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584 (1982)). Thus, any failure to raise a claim on direct appeal constitutes a procedural default that bars presentation of the claim in a § 2255 motion unless the petitioner can demonstrate cause and prejudice, or actual innocence. United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010); see Dretke v. Haley, 541 U.S. 386, 393, 124 S. Ct. 2291 (2004); Reed v. Farley, 512 U.S. 339, 114 S. Ct. 2291 (1994); see also United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999). Conversely, any "failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255." Massaro v. United States, 538 U.S. 500, 509, 123 S. Ct. 1690 (2003).

ANALYSIS

Atkinson argues that his sentence must be vacated because (1) the Government breached the plea agreement; (2) the judgment is void; (3) the Court violated Rule 11(b)(1)(E) of the Federal Rules of Criminal Procedure by neglecting to inform Atkinson of his right to present evidence at trial, rendering Atkinson's guilty plea unknowingly and involuntarily entered; and (4) his attorneys failed to render effective assistance of counsel in negotiating his plea agreement and at sentencing. As explained below, all of Atkinson's arguments are meritless.

I. Procedurally Barred Claims.

As noted above, it is well-settled that a § 2255 motion is not a vehicle to circumvent a proper ruling on appeal, United States v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013), and a defendant will not "be allowed to recast, under the guise of collateral attack, questions fully considered by [the Circuit Court on direct appeal]." Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976) (citing Herman v. United States, 227 F.2d 332 (4th Cir. 1955)).

Additionally, if a defendant waives an issue by failing to raise it on direct appeal and then later attempts to raise it as a collateral attack, that motion is procedurally barred. See Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 622 (1998). An exception to this rule applies where a petitioner demonstrates both "cause" and "actual prejudice," Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwright v. Sykes, 443 U.S. 72, 87 (1977), or where a petitioner can demonstrate that he is "actually innocent." United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010); see Dretke v. Haley, 541 U.S. 386, 393, (2004); Reed v. Farley, 512 U.S. 339, (1994); United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999).To show actual prejudice, Petitioner has the burden of showing that the alleged errors "worked to his actual and substantial disadvantage" with "error of constitutional dimensions." Frady, 456 U.S. at 170. Ultimately, when a sentence imposed by a district court was "'within the statutory limits,' and the proceedings were not 'infected with any error of fact or law of the fundamental character' the claim [is] not appropriate for a § 2255 review." United States v. Foote, 784 F.3d 931, 937 (4th Cir. 2015) (quoting United States v. Addonizio, 442 U.S. 178, 186, 99 S. Ct. 2235 (1979)).

On appeal, the Fourth Circuit rejected Atkinson's challenge to this Court's Rule 11 colloquy, finding that "the district court substantially complied with Rule 11." United States v. Atkinson, 801 Fed. App'x 196 (Mem.) (4th Cir. Apr. 20, 2020). Specifically, the Fourth Circuit noted that while this Court "neglected to inform Atkinson of his right to present evidence at trial, Fed. R. Crim. P. 11(b)(1)(E), and of the potential immigration consequences of pleading guilty, Fed. R. Crim. P. 11(b)(1)(O), these minor omissions did not affect his substantial rights," and that "the district court ensured that Atkinson entered his plea knowingly and voluntarily and that a factual basis supported the plea." Id.

Now, in addition to raising the same Rule 11 arguments that he raised on appeal, Atkinson raises the following new arguments for the first time on his § 2255 motion: that the Government breached the plea agreement and that the Court's sentence resulted in a "void judgment." These arguments could have been raised on direct appeal by Atkinson to challengehis conviction, but Atkinson did not raise them. Accordingly, Atkinson must show "cause," "actual prejudice," or "actual innocence."

Atkinson argues that the Government breached the plea agreement and that his judgment is thereby void because the Government "knowingly allowed the Court to sentence Petitioner to consecutive sentences without apprising the Court that the parties were bound to the single sentence of (144) months."...