United States District Court, D. New Jersey
L. WOLFSON UNITED STATES DISTRICT JUDGE
Mykal Hall (“Hall” or “Petitioner”),
is a federal prisoner proceeding pro se with a
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255. For the following reasons, Hall's
§ 2255 motion is denied.
BACKGROUND AND PLEADINGS
The Underlying Criminal Proceeding
was arrested on July 8, 2013, on a criminal complaint
charging him with one count of assaulting a person having
custody of United States property, with intent to rob, in
violation of 18 U.S.C. § 2114. See United States v.
Hall, Crim. No. 13-684 (FLW) (D.N.J.), Compl., ECF No.
1. The Complaint alleged that, between February and May of
2013, Hall sold to a confidential source seven firearms,
including two sawed-off shotguns, one of which had a defaced
serial number. Id., Attach. A, ¶ 1. It alleged
that Hall and the confidential source agreed to meet on June
8, 2013 for another firearms sale and that Hall showed the
confidential source a handgun before stating that he had to
go get a bag containing other guns. Id. ¶¶
3-4. The Complaint alleged that Hall returned, accompanied by
another person, ultimately determined to be codefendant
Lachtavo R. Nance (“Nance”), that Hall placed a
bag in the trunk of the confidential source's vehicle,
and that Nance then robbed the confidential source of the
purchase money at gunpoint. Id. ¶¶ 5-6.
jury returned a two-count indictment on October 17, 2013,
charging Hall and Nance, in Count One, with assault with
intent to rob property of the United States in violation of
18 U.S.C. §§ 2 and 2114 and, in Count Two, with use
of a firearm in relation to a crime of violence in violation
of 18 U.S.C. §§ 2 and 9 24(c)(1)(a)(ii). Crim. No.
13-684, ECF No. 12. The grand jury subsequently returned a
superseding, three-count indictment, which added a charge of
engaging in the business of dealing firearms without a
license in violation of 18 U.S.C. §§ 2 and
922(a)(1)(A). Id., ECF No. 18. In May 2014, this
Court dismissed without prejudice the assault charge against
Hall based on a violation of the Speedy Trial Act.
Id., ECF Nos. 34- 36. One week later, a grand jury
returned a second superseding indictment, with nine counts
against Hall,  for dealing firearms without a license
under 18 U.S.C. §§ 2 and 922(a)(1)(A) (Count One),
two counts of possession of an unregistered short-barreled
shotgun under 18 U.S.C. § 2 and 26 U.S.C. §§
5841, 5861(d), and 5871 (Counts Two and Four), two counts of
delivery of an unregistered short-barreled shotgun under 18
U.S.C. § 2 and 26 U.S.C. §§ 5841, 5861(j), and
5871 (Counts Three and Six), possession of a firearm with a
defaced serial number under 18 U.S.C. § 2 and 26 U.S.C.
§§ 5842, 5861(h), and 5871 (Count Five), conspiracy
to commit Hobbs Act robbery under 18 U.S.C. § 1951
(Count Seven), and, as in the first superseding indictment,
assault with intent to rob property of the United States
under 18 U.S.C. §§ 2 and 2114 and possession of a
firearm in relation to a crime of violence in violation of 18
U.S.C. §§ 2 and 924(c)(1)(a)(ii) (Counts Eight and
Nine). Id., ECF No. 38.
18, 2014, Hall pleaded guilty before this Court to Count Four
of the Second Superseding Indictment, for possession of an
unregistered, short-barreled shotgun. Id., ECF Nos.
42-44, 49. As part of the plea agreement, Hall waived his
right to file an appeal, collateral attack, or challenge to a
sentence within the range set forth by the United States
Sentencing Guidelines for an offense level of 29.
Id., ECF No. 44 ¶¶ 12-13. On November 24,
2014, this Court sentenced Hall to 108 months of
imprisonment, to be followed by three years of supervised
release. Crim. No. 13-684, ECF Nos. 47-48, 56.
The § 2255 Motion
25, 2015, Hall, acting pro se, filed a § 2255
motion to vacate, set aside, or correct his sentence. (ECF
No. 1.) The Court administratively terminated the petition as
Hall's motion was not submitted on the proper form, as
required by Local Civil Rule 81.2(a). (Order (July 8, 2015),
ECF No. 2.) Hall shortly thereafter filed a new § 2255
motion, which asserts three grounds for relief, which are all
based on a theory of ineffective assistance of counsel.
(See ECF Nos. 3 & 3-1.) Hall contends that his
counsel misinformed him regarding the potential for
sentencing enhancements, allegedly leading Hall to believe he
would receive a prison sentence of no more than 36 months if
he accepted the plea deal, and Hall asserts that he would
have gone to trial but for this advice. (Mem. of Points &
Authorities, ECF No. 3-1, at 20-22.) Hall also alleges that
his attorney was ineffective by failing to object to the
government's use of “sentencing factor
manipulation, ” by failing to argue that Hall's
sentence was substantively unreasonable, and by failing to
object to a sentence based on insufficiently established
facts. (Id. at 23-26.)
April 7, 2016, Hall filed a “Motion to Amend and
Supplement the Record, ” in which he seeks to add a
claim that his sentencing enhancements violated the Supreme
Court's holding in Johnson v. Untied States, 135
S.Ct. 2551 (2015). (ECF No. 7.) In October 2017, Hall filed
another motion seeking to amend his petition by alleging that
his counsel provided ineffective assistance by failing to
challenge the sentence under Rosemond v. United
States, 572 U.S. 65 (2014). (ECF No. 10.)
government filed an Answer opposing Hall's § 2255
motion, which included an affidavit from the attorney who
represented Hall during the plea and sentencing stage, Scott
Krasny (“Krasny”), as well as copies of
correspondence between Krasny and Hall. (ECF Nos. 11 through
grant relief on a federal prisoner's motion to vacate,
set aside, or correct a sentence under 28 U.S.C. § 2255,
the Court must find 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.” 28 U.S.C. § 2255(b). “In
considering a motion to vacate a defendant's sentence,
‘the court must accept the truth of the movant's
factual allegations unless they are clearly frivolous based
on the existing record.'” United States v.
Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting
Gov't of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir.
1989)). A district court “is required to hold an
evidentiary hearing ‘unless the motion and files and
records of the case show conclusively that the movant is not
entitled to relief.'” Id. (quoting
Forte, 865 F.2d at 62).
bulk of Hall's arguments are framed as claims for
ineffective assistance of trial counsel. (See ECF
Nos. 3-1 & 10.) The Sixth Amendment guarantees defendants
effective assistance of counsel during critical portions of a
criminal proceeding. See Lafler v. Cooper, 566 U.S.
156, 165 (2012). The Supreme Court, in Strickland v.
Washington, 466 U.S. 668 (1984), articulated a two-prong
burden for demonstrating the ineffectiveness of counsel: (1)
that, considering all relevant circumstances, counsel's
performance fell below an objective standard of
reasonableness and (2) that the petitioner suffered prejudice
as a result. Id. at 687-96; see also Preston v.
Superintendent Graterford SCI, __ F.3d __, 2018 WL
4212055, at *9, *12 (3d Cir. Sept. 5, 2018); Grant v.
Lockett, 709 F.3d 224, 232 (3d Cir. 2013).
addressing the first prong, the petitioner “must
identify the acts or omissions of counsel that are alleged
not to have been the result of reasonable professional
judgment.” Strickland, 466 U.S. at 690.
Judicial scrutiny of counsel's conduct must be
“highly deferential.” See Id. at 689.
“[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.”
Id. at 690. The reviewing court must make every
effort to “eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.” Id. at
689. Counsel's strategic choices made after thorough
investigation of the relevant law and facts are
“virtually unchallengeable, ” while choices made
with less than entirely thorough investigation “are
reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation.” Id. at 690-91; see also
Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006);
Gov't of V.I. v. Weatherwax, 77 F.3d 1425, 1432
(3d Cir. 1996). Whether counsel acted in a manner that was
deficient is measured by a standard of “reasonableness
under prevailing professional norms.”
Strickland, 466 U.S. at 687-88; see also Wiggins
v. Smith, 539 U.S. 510, 521 (2003).
second prong of the Strickland test requires the
petitioner to affirmatively prove resulting prejudice.
See 466 U.S at 693. Prejudice is generally found
where “there is 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 “a probability
sufficient to undermine confidence in the outcome.”
Id.; see also McBride v. Superintendent, SCI
Houtzdale,687 F.3d 92, 102 n.11 (3d Cir. 2012).
“This does not require that counsel's actions more
likely than not altered the outcome, but the difference
between Strickland's prejudice standard and a
more-probable-than-not standard is slight and matters only in