Virginia Lawyers Weekly VA Lawyers Weekly
A Newport News U.S. District Court denies petitioner’s 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel during his prosecution on drug charges and for identity theft.
Petitioner seeks relief on four claims of ineffective assistance of counsel: 1) counsel failed to object to the court’s questioning of petitioner during trial or to appeal this issue; 2) counsel failed to request a lesser-included instruction on simple possession; 3) counsel failed to investigate and present to the court petitioner’s history of mental illness; and 4) counsel was ineffective pursuant to the recent decision of Lafler v. Cooper, 132 S.Ct. 1376 (2012).
The evidence against petitioner was overwhelming, and there is little likelihood the court’s comments caused any prejudice to petitioner. Any potential prejudice caused by the court’s remarks was cured by the cautionary instruction read to the jury prior to deliberations, which instructed the jury not to assume the court held any opinion on matters referred to in its questions, and that it was up to the jury to determine guilt or innocence of the defendant. Counsel’s request for a limiting instruction was sufficient and his decision not to raise this issue on appeal cannot be considered ineffective assistance of counsel.
Nor was counsel ineffective in failing to request a lesser-included instruction on simple possession. The evidence at trial was that petitioner dropped, in the presence of a law enforcement witness, 36 individually wrapped pieces of cocaine base. An expert witness testified this quantity revealed intent to distribute. There was no affirmative evidence the drugs were for personal use, and any request for a lesser-included instruction would have been frivolous.
Contrary to petitioner’s assertions, the presentence report develops petitioner’s personal background and mental health issues at some length. The court had ample opportunity, both through the PSR and through defense counsel’s position paper, to consider petitioner’s history of mental and emotional deficiencies in fashioning an appropriate sentence.
Petitioner relies on Lafler to support his claim that his trial counsel’s allegedly faulty advice with respect to the strength of petitioner’s defense amounted to ineffective assistance of counsel. Even if the court were to consider the Lafler claim on the merits, the claim would fail. There is nothing in the record to suggest petitioner ever intended to plead guilty to the offense with which he was charged. He does not allege his trial counsel failed to communicate the government’s plea offer. After-the-fact testimony concerning a defendant’s desire to plead, without more, is sufficient to establish that but for counsel’s alleged advice or inaction, he would have accepted the plea offer. Petitioner has failed to make the necessary showing that, but for counsel’s allegedly faulty advice, he would have pled guilty rather than go to trial.
Post-conviction motion denied.
Berry v. U.S. (Doumar) No. 4:08cr43, July 29, 2012; USDC at Newport News, Va.; Keith L. Kimball, FPD; Laura P. Tayman, AUSA. VLW 012-3-380, 16 pp.
