JAMES C. FOX, Senior District Judge.
This matter is before the court on Objections [DE-713] to the Order and Memorandum and Recommendation [DE-699] of United States Magistrate Judge Robert B. Jones, Jr., regarding the Government's Motion to Dismiss or, in the Alternative, for Summary Judgment [DE-524] as to Donald Stanton Shealey's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [DE-497]. For the reasons set forth below, the court concludes that Shealey's objection to the Magistrate Judge's ruling on his motions to seal is well taken, and the remainder ofhis objections to the Magistrate Judge's rulings are without merit. Moreover, Shealey's objections to the Magistrate Judge's recommendations are without merit, and the court ADOPTS the recommendation of the Magistrate Judge to ALLOW the Government's Motion to Dismiss or, in the Alternative, for Summary Judgment that the court construes as a motion for summary judgment and DENY Shealey's § 2255 motion.
On August 13, 2012, Shealey filed his Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [DE-497]. In his§ 2255 motion, Shealey argues that he is entitled to relief on the following grounds: (1) his trial attorney provided ineffective assistance of counsel by advising him to cease cooperation with the Government and proceed to trial; (2) the prosecutor engaged in prosecutorial misconduct by having him placed in solitary confinement and having his legal materials confiscated; (3) his trial attorney provided ineffective assistance of counsel by allowing the sentencing court to re-try the evidence; (4) his trial attorney provided ineffective assistance of counsel by advising him not to discuss his financial status with the probation officer; (5) his trial attorney provided ineffective assistance of counsel by failing to properly investigate the case, failing to object to illegally obtained evidence, failing to present a complete defense, and preventing him from testifying on his own behalf at trial; and (6) his appellate attorney provided ineffective assistance of counsel by failing to raise a claim based on United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). On June 12, 2013, the Government filed a Motion to Dismiss or, in the Alternative, for Summary Judgment [DE-524].
Magistrate Judge Jones held an evidentiary hearing on September 23, 2013, to further develop the record on the issue of whether Shealey's attorney prevented him from testifying on his own behalf at trial. On August 25, 2015, Judge Jones issued an Order and Memorandum and Recommendation ("Order and M&R") [DE-699] addressing Shealey's § 2255 motion and related motions. Judge Jones recommended that the Government's Motion to Dismiss or, in the alternative, for Summary Judgment [DE-524] be treated as one for summary judgment and be ALLOWED and Shealey's § 2255 motion [DE-497] be denied. See Order and M&R [DE-699] at 1, 45.
On October 15, 2015, Shealey filed Objections [DE-713] to the Order and M&R. In his appeal of Judge Jones's Order, Shealey argues as follows: the Magistrate Judge erred in his ruling on the Motion to Expand the Record and Request for Evidentiary Hearing and Motion for Discovery; the Magistrate Judge erred in denying his Motion to Amend; and the Magistrate Judge erred in addressing his motions to seal. In his Objections to the Magistrate Judge's recommendations, Shealey objects to the following: (1) the Magistrate Judge's findings, conclusions, and recommendations as it pertains to ground one; (2) the Magistrate Judge's findings, conclusions, and recommendations as to claim three; (3) the Magistrate Judge's findings, conclusions, and recommendation that trial counsel was not ineffective for advising him to refuse to speak to the probation officer concerning his financial status; (4) the Magistrate Judge's findings, conclusions, and recommendation that trial counsel was not constitutionally ineffective for his failure to conduct an independent investigation into the facts and law surrounding the case; (5) the Magistrate Judge's fmdings, conclusions and recommendation that trial counsel was not constitutionally ineffective by preventing him from testifying at trial on his own behalf; (6) the Magistrate Judge's findings, conclusions, and recommendation regarding his prosecutorial misconduct claim; and (7) the Magistrate Judge's findings, conclusions, and recommendation that appellate counsel was not constitutionally ineffective in failing to raise Simmons on direct appeal.
The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those portions of the recommendation to which specific objections are made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendation, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). In the absence of a timely-filed objection, a district court need not conduct a de novo review, but instead must "only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310,315 (4th Cir. 2005).
In Shealey's Motion to Expand the Record and Request for Evidentiary Hearing, he requests a hearing and seeks the following discovery: (1) the§ 851 promise letter stating that the Government would not file a § 851 enhancement if he agreed to plead guilty; (2) the written plea agreement offered by the Government; and (3) all documents relevant to the claims raised in his § 2255 motion. Mot. Expand the Record [DE-558] at 1-6. In Shealey's Request for Authorization to Conduct Discovery, he seeks an order directing the Government to respond to interrogatories and requests for admission related to the § 851 letter, proposed plea agreement, and any proactive cooperation agreement between Shealey or his co-defendants and the Government. Request for Author. Conduct Discovery [DE-573]; Written Interrogatories and Request for Admission [DE-573-1]. Shealey is seeking discovery in support ofhis claim that his attorney rendered ineffective assistance of counsel by advising him to cease cooperating with the Government and proceed to trial. Shealey contends that the Government is withholding evidence that it offered him a plea agreement that included a promise not to file a § 851 enhancement so that he would not receive a life sentence in exchange for his guilty plea. Mot. Expand the Record [DE-558] at 3.
Pursuant to Rule 6(a) of the Rules Governing Section 2255 Proceedings, "[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Criminal Procedure or Civil Procedure, or in accordance with the practices and principles oflaw." Unlike the ordinary civil litigant in federal court, a habeas petitioner is not entitled to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). A petitioner bears the burden of showing "good cause" and must `"present specific allegations that give the Court reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief."' Fenn v. United States, Nos. 1:12-CR-510, 1:15-CV-578, 2015 WL 3868583, at *2 (E.D.Va. June 23, 2015) (quoting Pizzuti v. United States, 809 F.Supp.2d 164, 176 (S.D.N.Y. 2011) (citations and internal quotation marks and punctuation omitted)). The court will not allow a mere fishing expedition through the government's files with the hopes that damaging evidence will be found. Id.
As the Magistrate Judge pointed out, the problem with Shealey's argument is that even absent the § 851 enhancement, the statutory maximum and guideline range on Count One was life imprisonment. See Order and M&R [DE-699] at 9 (citing 21 U.S.C. § 841(b)(1)(A); PSR ¶¶ 71-72). Thus, the court could have imposed a life sentence even if the Government had not pursued the § 851 enhancement. Id. The Magistrate Judge concluded that the discovery Shealey is seeking regarding the Government's alleged offer not to seek the § 851 enhancement was unnecessary to the disposition of the issues raised in his§ 2255 motion. Id. The Magistrate Judge denied the motions for discovery on the basis that there was no good cause to allow the discovery sought. Id. at 10.
The court agrees with the Magistrate Judge that Shealey has failed to show good cause for the discovery he is seeking. Thus, the Magistrate Judge correctly denied Shealey's motions for discovery.
The Magistrate Judge concluded that the request for a hearing was denied as moot because a limited evidentiary hearing was held on September 23, 2014. Id. Rule 8 of the Rules Governing Section 2255 Proceedings provides that it is within the discretion of the district court to determine whether an evidentiary hearing is warranted. The court may decide a§ 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).
The court concludes that Shealey has failed to show that a hearing was warranted on any issue other than the issue of whether counsel prevented him from testifying on his own behalf at trial. Accordingly, the court concludes that Shealey's request for an unlimited evidentiary hearing was appropriately denied because the request was completely without merit.
Shealey seeks to amend his§ 2255 motion to add Miller v. United States, 735 F.3d 141, 147 (4th Cir. 2013) and Whiteside v. United States, 748 F.3d 541, 548 (4th Cir. 2014), in support of his claim that appellate counsel rendered ineffective assistance of counsel for failure to raise a Simmons claim. Mot. Amend [DE-580] at 5. Shealey also seeks to add a new claim of ineffective assistance of appellate counsel for failing to challenge the use at sentencing of facts not found by the jury. Id. at 5-6. Shealey has alleged that he is entitled to relief under Simmons because he was erroneously classified as a career offender under U.S.S.G. § 4Bl.l. Id. at 2-5.
The amendment of a § 2255 motion is governed by Rule 15 of the Federal Rules of Civil Procedure. See United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000) (noting that although the Rules Governing Section 2255 do not address the procedure for amending motions, courts have typically applied Federal Rule of Civil Procedure 15). The Fourth Circuit has held that "the standards used by a district court in ruling on a motion to amend or on a motion to supplement are nearly identical." Franks v. Ross, 313 F.3d 184, 198 n.15 (4th. Cir. 2002). "In either situation, leave should be freely granted, and should be denied only where `good reason exists . . ., such as prejudice to the defendants."' Id. (quoting Walker v. United Parcel Serv., 240 F.3d 1268, 1278 (10th Cir. 2001)). Leave to amend should also be denied when the amendment would be futile. Edwards v. City ofGoldsboro, 178 F.3d 231, 242 (4th Cir. 1999).
As the Magistrate Judge pointed out, Shealey was classified as a career offender under § 4B 1.1, but the career offender enhancement did not impact his guideline range because his base offense level of 40 and adjusted offense level of 48, calculated prior to the application of the career offender enhancement, were greater than the level dictated by the enhancement, which is 37. See Order and M&R [DE-699] at 12 n.3 (citing PSR ¶ 67; U.S.S.G. § 4Bl.1(b)). The career offender enhancement increased Shealey's criminal history category from, IV to VI, PSR ¶ 45, his total offense level of 43 results in a guideline range of life imprisonment regardless of the criminal history category. See Order and M&R [DE-699] at 12.
The Magistrate Judge noted that Shealey was sentenced to life imprisonment on Count One, a within-guideline sentence that was not affected by Simmons. Id. at 12. Further, the increased statutory maximum on Counts Two through Six resulting from the Simmons error had no effect on Shealey's aggregate sentence because the sentences on Counts Two through Six are to be served concurrently with the life sentence imposed on Count One. Id. (citing United States v. Lewis, 449 F. App'x 266, 269 (4th Cir. 2011) (finding Simmons error did not affect the defendant's substantial rights because sentencing in accordance with Simmons would not have changed the aggregate sentence where the court imposed greater sentences unaffected by Simmons on additional counts to run concurrently)). Whiteside and Miller do not change this result. Id. at 13. The Magistrate Judge concluded that the proposed amendment related to Shealey's Simmons claim must be denied because it is futile. Id. The court agrees with the Magistrate Judge and concludes that the proposed amendment related to Shealey's Simmons claim must be denied because it is futile.
In support of his proposed new claim, Shealey cites to Apprendi v. New Jersey, 530 U.S. 466 (2000), Alleyne v. United States, 133 S.Ct. 2151 (2013), McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), and the Fair Sentencing Act. Mot. Amend [DE-580] at 5-6. Shealey argues that because the jury found him guilty on Count One of conspiring to possess with intent to distribute less than five kilograms of cocaine, which carries a statutory maximum penalty of 40 years under 21 U.S.C. § (b)(1)(B)(ii), the court could not sentence him to a term greater than 40 years based on the finding of a greater weight at sentencing. Mot. Amend [DE-580-1] at 9-10.
As the Magistrate Judge pointed out, in order for a defendant to be subjected to a statutory range of "not less than 10 years or more than life," the jury need only find that the defendant conspired to possess either one kilogram or more of heroin or five kilograms or more of cocaine. See Order and M&R [DE-699] at 14 (citing 21 U.S.C. §§ 841(b)(1)(A)(i), (ii)(II)). Because the jury found that Shealey conspired to possess with intent to distribute at least one kilogram of heroin, the jury's verdict supports a statutory maximum of life imprisonment under § 841(b)(1)(A)(i). Id. The court's sentence did not violateApprendi, and Shealey's claim of deficient performance of appellate counsel for failing to challenge the court's sentence because it increased the statutory maximum based on facts not found by the jury lacks merit. The Magistrate Judge ultimately denied the motion to amend as futile because the proposed amendment would add a new ineffective assistance of counsel claim and supporting authority that would prove futile. Id. at 15. The court agrees that the Magistrate Judge properly denied the Motion to Amend on the basis that it was futile.
In his motions to seal [DE-627, -658], Shealey is attempting to seal his Reply [DE-534] and his Post-Hearing Memorandum [DE-626] filed in support of his§ 2255 motion. The Magistrate Judge concluded that sealing the exhibits [DE-534-1] to Shealey's Reply brief and Appendix E [DE-626-5] to his Post-Hearing Memorandum would protect both Shealey's safety interests and the public's right to access. See Order and M&R [DE-699] at 45. Thus, the Magistrate Judge allowed in part and denied in part Shealey's motions to seal. Id.
The public and the press have a qualified right of access to judicial documents filed in a criminal proceeding. Doe v. Public Citizen, 749 F.3d 246, 265 (4th Cir. 2014). "The right of public access springs from the First Amendment and the commonlaw tradition that court proceedings are presumptively open to public scrutiny." Id. (citing Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004)). The right of public access, arising under the First Amendment or the common law, "may be abrogated only in unusual circumstances." Stone v. University ofMaryland Medical System Corp., 855 F.2d 178, 182 (4th Cir. 1988)
After thoroughly reviewing Shealey's Reply [DE-534] and Post-Hearing Memorandum [DE-626], the court concludes that these two documents must be sealed in their entirety. Accordingly, Shealey's motions to seal [DE-627, -658] are ALLOWED.
In claim one, Shealey alleges that his trial attorney rendered ineffective assistance of counsel by advising him to cease cooperating with the Government and go to trial. Mot. Vacate [DE-497] at 5-14. Shealey concludes that but for his attorney's erroneous advice, he would have accepted the plea offer from the Government, continued cooperating with the Government, and received a significantly less sentence. Id. at 13.
In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The petitioner bears the burden of proof as to both prongs of the Strickland standard. United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010). Under the first prong, the petitioner must show that his counsel's representation "fell below an objective standard of reasonableness" as measured by "prevailing professional norms." Strickland, 466 U.S. at 688. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. As for the second prong, the petitioner must demonstrate that his counsel's inadequate performance was prejudicial to him. Id. at 687. Specifically, the petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id.
The Magistrate Judge concluded that Shealey failed to show how counsel's advice in the plea-bargaining process fell below an objective standard of reasonableness under Strickland. See Order and M&R [DE-699] at 20. Specifically, Shealey's attorney discussed the situation with him, advised him that the strategy giving him the best potential outcome was going to trial, and allowed him to make the ultimate choice. Id. The Magistrate Judge noted that initially both Shealey and his attorneys agreed that pursuing cooperation and a plea bargain was the proper course, but after Shealey's debriefing, the evidence indicates any climate of cooperation had chilled considerably. Id.
The Magistrate Judge also concluded that Shealey could not show that he was prejudiced by his attorney's assistance. Id. at 21. According to the Magistrate Judge, there was no evidence in the record suggesting that a plea agreement likely to result in a sentence of less than life imprisonment was ever offered to Shealey in exchange for his cooperation. Id. Further, the § 851 enhancement ultimately had no impact on the life sentence Shealey received because his guideline range and the statutory maximum were life imprisonment even without the § 851 enhancement. Id. at 21-22 (citing 21 U.S.C. § 841(b)(1)(A); PSR ¶¶ 71-72.).
The court concludes that the Magistrate Judge's findings under both prongs of the Strickland standard are supported by substantial evidence. Accordingly, Shealey's objections to the Magistrate Judge's recommendation on claim one are overruled.
In claim three, Shealey alleges that his trial attorney provided ineffective assistance of counsel by allowing the sentencing court to re-try the evidence against him. Mot. Vacate [DE-497] at 19-20. Specifically, Shealey contends that the sentencing court erred by considering a higher drug amount than the jury found at trial. Id.
On Count One, Shealey was facing a sentence of not less than 20 years nor more than life imprisonment based on the jury's finding that he conspired to possess with intent to distribute at least one kilogram ofheroin. Special Verdict Form [DE-286] at 1-2; 21 U.S.C. §§ 841(b)(1)(A)(i) and 851. At sentencing, the court found that Shealey was accountable for 27,000 grams of cocaine, 8,678.785 grams of cocaine base, 17,918.3 grams ofheroin, and 38,556 grams of marijuana, for a total marijuana equivalency of 196,930.22 kilograms. See July 1, 2011 Order [DE-446] at 3; Sentencing Transcript [DE-399] at 38. Based on the drug quantities attributed to Shealey, the guideline range was life imprisonment. PSR ,-[ 72. The court sentenced Shealey to life imprisonment on Count One. See Judgment [DE-322].
The Magistrate Judge concluded that the court properly considered the evidence as to drug quantity attributable to Shealey and made findings by a preponderance of the evidence in accordance with the law. See Order and M&R [DE-699] at 24. Further, the Magistrate Judge concluded that it was not ineffective assistance of counsel to raise a meritless argument. Id.
The court agrees with the Magistrate Judge's conclusion that the court's findings at sentencing were proper and the failure to raise a meritless argument can't result in ineffective assistance. See Moore v. United States, 934 F.Supp. 724, 731 (E.D. Va. 1996) (holding that failure to raise a meritless argument can never amount to ineffective assistance). Consequently, Shealey's objections to the Magistrate Judge's recommendation on claim three are overruled.
In his fourth claim, Shealey alleges that his attorney provided ineffective assistance of counsel in advising him not to discuss his financial status with the probation officer. Mot. Vacate [DE-497] at 21-22. Shealey concludes that his attorney's advice resulted in the court assessing a $5 million fine. Id.
Shealey's attorney, Robert Nunley, believed that Shealey was not forthright regarding his fmancial assets and the distribution of those assets to friends and family and advised Shealey that if he was dishonest with probation, it could lead to sentencing enhancements. See Nunley Decl. [DE-525-1] at 2-3. "If the court concludes that the defendant willfully misrepresented all or part of his income or assets, it may increase the offense level and resulting sentence in accordance with Chapter Three, Part C (Obstruction and Related Adjustments)." U.S.S.G. § 5E1.2, application note 6.
The Magistrate Judge concluded that counsel's advice was objectively reasonable given the circumstances. See Order and M&R [DE-699] at 26. As the Magistrate Judge pointed out, if Shealey believed that his attorney's advice was based on ulterior motives, as he alleges, and had he intended to be truthful regarding his fmancial situation, he simply could have not followed his attorney's advice and instead spoken with probation or to the court at sentencing. Jd The Magistrate Judge concluded that Shealey could not show prejudice because the court also considered other evidence in assessing the fine. Id. Moreover, Shealey's attorney advocated against a fine at sentencing. Id.
The court concludes that the Magistrate Judge's findings under both prongs of the Strickland standard are supported by the record. Accordingly, Shealey's objections to the Magistrate Judge's recommendation on claim four are overruled.
Shealey alleges in his fifth claim that his attorney provided ineffective assistance of counsel by failing to adequately investigate the case, present a complete defense, or object to illegally obtained evidence. Mot. Vacate [DE-497] at 23-27. Shealey further alleges that his attorney's decision not to present witnesses amounted to a failure to present a complete defense, and if his attorney had investigated the case, he would have called the witnesses Shealey has named. Id. at 24-26.
The Magistrate Judge noted that Shealey's argument that his attorney would have called witnesses had he investigated those witnesses is speculative and does not demonstrate that Shealey is entitled to relief. See Order and M&R [DE-699] at 27. The Magistrate Judge also noted that deciding not to call certain witnesses is a reasonable strategic decision that a lawyer is entitled to make in contesting a case. Id. (citing United States v. Chapman, 583 F.3d 365, 367-68 (4th Cir. 2010)). The Magistrate Judge further noted a reasonable defense trial strategy may be to simply attack and discredit the claims of the prosecution and its witnesses, as was the strategy employed by Shealey's attorneys. Id.
Under the second prong of the Strickland standard, the Magistrate Judge noted that Shealey failed to show any reasonable probability of a different outcome had his attorney called the witnesses. Id. at 28. The Magistrate Judge noted that Shealey — offered only speculation as to what these witnesses would testify to. Id.
Shealey has also alleged that his attorney failed to challenge illegally obtained evidence that was presented by the Government. Mot. Vacate [DE-497] at 23-24. Specifically, Shealey contends that his attorney should have objected to the introduction of telephone calls that he claims were illegally obtained. Id.
The Magistrate Judge noted that Shealey made no showing that the evidence was unlawfully obtained. See Order and M&R [DE-699] at 29. The Magistrate Judge further noted that three attorneys reviewed Shealey's case and found no legal or factual basis for filing the motions Shealey argues were warranted. Id. (citing Nunley Decl. [DE-525-1] at 3-4). Also, the Magistrate Judge pointed out that Shealey failed to allege that had counsel objected to the conversations, there would be a reasonable probability of a different outcome in the case. Id.
The court concludes that the Magistrate Judge's findings under both prongs of the Strickland standard are supported by substantial evidence. Consequently, Shealey's objections to the Magistrate Judge's recommendation on his fifth claim are overruled.
In his fifth claim, Shealey alleges that his trial attorney improperly prohibited him from testifying in his own defense at trial. Mot. Vacate [DE-497] at 26; Mem. Fact and Law [DE-626] at 2. "[A] criminal defendant has a constitutional right to testify on his own behalf at trial." United States v. Midgett, 342 F .3d 321, 325 (4th Cir. 2003) (citing Rock v. Arkansas, 483 U.S. 44, 51 (1987)). Further, it is the criminal defendant who possesses ultimate authority to decide whether he will testify. United States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991). Defense counsel has the primary responsibility for advising the defendant of his right to testify and explaining the tactical implications of testifying or not. Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998).
This issue was addressed in an evidentiary hearing before the Magistrate Judge on September 23, 2014. At the evidentiary hearing, Shealey's trial counsel Robert Nunley and Patrick Roberts testified for the Government, and Shealey testified on his own behalf.
Shealey testified that Nunley told him he could not testify because of his proffer, and based on this conversation with Nunley, he believed he could not choose to testify. See Evidentiary Hrg. Transcript [DE-615] at 52. As the Magistrate Judge pointed out, this testimony is not credible because it directly conflicts with Shealey's trial testimony. See Order and M&R [DE-699] at 39. Specifically, at Shealey's trial, following the close of the Government's evidence, the court engaged in the following colloquy with Shealey:
See March 19, 2009 Transcript [DE-389-6] at 133-34.
The Magistrate Judge determined that the evidentiary hearing testimony provided by Nunley and Roberts was credible, and Shealey's allegations were not credible. See Order and M&R [DE-699] at 39. The Magistrate Judge concluded that Shealey had failed to carry his burden to show that his attorney violated his constitutional rights by preventing him from testifying at trial on his own behalf. Id. at 41.
The court concludes that the Magistrate Judge's credibility determinations are supported by the record. Moreover, Shealey's claim that he believed he could not testify is in direct conflict with his testimony before this court during his trial. For all these reasons, Shealey's objections on this fifth claim are overruled.
In his second claim, Shealey alleges that the prosecutors improperly interfered with his ability to present a defense by requesting prison officials place him in solitary confinement, confiscate his legal materials, and restrict his telephone access. Mot. Vacate [DE-497] at 15-18; Reply [DE-534] at 21-24. Shealey contends that the Government's alleged misconduct occurred during trial and again after his conviction, sentence, and on direct appeal. Mot. Vacate [DE-497] at 15-18; Reply [DE-534] at 21-24.
In order for a prosecutor's conduct to qualify as prosecutorial misconduct, the conduct must have `"so infected the trial with unfairness as to make the resulting conviction a denial of due process."' United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002) (quoting United States v. Morsley, 64 F.3d 907: 913 (4th Cir. 1995)). Reversible prosecutorial misconduct has two components: first, the defendant must show that the prosecutor's remarks or conduct were improper; and second, the defendant must show that such remarks or conduct prejudicially affected his substantial rights such that he was deprived of a fair trial. Id. (citing United States v. Mitchell, 1 F.3d 235, 240 (4th Cir.1993)). When assessing prejudice, the court must consider the following:
United States v. Wilson, 624 F.3d 640, 656-57 (4th Cir. 2010) (citing Scheetz, 293 F.3d at 186).
The Magistrate Judge concluded that the alleged prosecutorial misconduct of having Shealey segregated during his trial was procedurally defaulted. See Order and M&R [DE-699] at 41. "Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal." Bousley v. United States, 523 U.S. 614, 621 (1998) (internal quotation marks omitted). When a defendant procedurally defaults a claim by failing to raise it on direct appeal, the claim is cognizable in habeas "only if the defendant can first demonstrate either `cause' and actual `prejudice,' or that he is `actually innocent.'" Id. at 622 (citations omitted).
The court agrees that the alleged prosecutorial misconduct of having Shealey segregated during his trial is a claim that could have been raised on direct appeal. Because it was not raised on direct appeal, it has been procedurally defaulted.
As for Shealey's prosecutorial misconduct claim that he was segregated after his conviction, sentence, and direct appeal, the Magistrate Judge concluded that this claim is properly raised in a§ 2241 petition because Shealey is challenging the execution of his sentence. See Order and M&R [DE-699] at 42. Further, although Shealey contends that the confiscation of his legal materials has impacted his ability to present his § 2255 motion, the Magistrate Judge noted that Shealey has stated each claim in a detailed manner and has filed voluminous supporting documents. Id. at 43. The Magistrate Judge concluded that Shealey was not entitled to relief on this claim. Id. The court agrees with the Magistrate Judge's resolution of this claim. Shealey's objections to the Magistrate Judge's recommendation are without merit and will be overruled.
The Magistrate Judge concluded that Shealey did not show that it was ineffective assistance of counsel for his attorney to fail to raise a Simmons claim because Simmons was not decided by the Fourth Circuit Court of Appeals until August 17, 2011, which was four months after Shealey's appeal was decided by the Fourth Circuit. See Order and M&R [DE-699] at 43. Moreover, as the Magistrate Judge concluded, Shealey was not prejudiced by any Simmons error because it did not change his aggregate sentence of life imprisonment. Id.
As the Magistrate Judge points out, Shealey's appeal preceded Simmons by four months. Moreover, the court notes that an attorney's assistance is not rendered ineffective merely because he failed to anticipate a new rule oflaw. United States v. Tillery, Nos. 3:10-CR-223, 3:14-CV-275, 2015 WL 3651144, at *7 (E.D.Va. June 11, 2015) (citing Kornahrens v. Evatt, 66 F.3d 1350, 1360 (4th Cir. 1992)). Thus, Shealey has failed to show that his appellate attorney's performance fell below an objective standard of reasonableness. Shealey's objections on this claim are without merit and will be overruled.
For the foregoing reasons, the court concludes that Shealey's objection to the Magistrate Judge's ruling on his motions to seal is well taken, and it is ORDERED that Shealey's Reply [DE-534] and Post-Hearing Memorandum [DE-626] are to be sealed in their entirety. Moreover, the court ADOPTS the recommendation of the Magistrate Judge as its own, and for the reasons stated therein, in addition to the above-stated reasons, the Government's Motion to Dismiss or, in the Alternative, for Summary Judgment [DE-524] is construed as a motion for summary judgment and is ALLOWED and Shealey's § 2255 motion [DE-497] is DENIED.
A certificate of appealability will not issue unless there has been "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would fmd that the district court's assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). However, when a district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85.
The court concludes that Shealey has not made the requisite showing to support a certificate of appealability. Therefore, a certificate of appealability is DENIED.
SO ORDERED.
