United States District Court, M.D. Florida, Orlando Division
OPINION AND ORDER
DALTON JR. UNITED STATES DISTRICT JUDGE
cause comes before the Court on Rashard Walker's
“Walker's”) motion to vacate, set aside, or
correct an illegal sentence (Doc. 1, filed October 24, 2016).
Respondent filed a response in opposition to the motion (Doc.
6), and Walker has filed a reply (Doc. 8). The motion is ripe
for review. Upon review of the pleadings, the Court concludes
that Walker's amended § 2255 motion must be denied.
Background and Procedural History
April 29, 2015, a federal grand jury in the Middle District
of Florida indicted Walker on one count of being a convicted
felon in possession of a semi-automatic assault rifle, a drum
magazine, and 58 rounds of ammunition, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2).
signed a plea agreement on June 15, 2015. (Cr. Doc. 39). The
factual basis set forth in Walker's plea agreement listed
the facts giving rise to his arrest as follows:
On or about February 5, 2015, at approximately 5:45 p.m., the
Orlando Police Department SWAT team executed a state search
warrant at WALKER's residence at the time, 734 Kankakee
Lane, Orlando, Florida. When the SWAT team entered the
residence, WALKER was awakened from a nap in his bedroom,
exited his bedroom, and entered the hallway of the residence.
IN WALKER's open bedroom closet, the SWAT team found, in
plain view, the Izhmash semiautomatic rifle, serial number
H03600854, which was manufactured in Russia. The SWAT team
also found in WALKER's bedroom closet a large capacity
loaded drum magazine, a banana clip type loaded magazine, and
58 rounds of 7.62X39 mm caliber ammunition.
(Cr. Doc. 39 at 17-18). Walker initialed the page setting
forth the factual basis for his plea. (Id.). On June
24, 2015, a change of plea hearing was held in front of the
undersigned. (Cr. Doc. 118). The Court determined that there
was a factual basis for the plea, the plea was accepted, and
Walker was adjudicated guilty. (Id. at 21-22, 27).
October 26, 2015, the Court sentenced Walker to ninety months
in prison, a variance below the low end of the applicable
guidelines range. (Doc. 6-1 at 19). Walker did not file a
direct appeal of his conviction or sentence. Walker timely
filed the instant 28 U.S.C. § 2255 motion on October 24,
2016 (Doc. 1).
Standard of Review under 28 U.S.C. § 2255
28 U.S.C. § 2255 provides federal prisoners with an
avenue for relief under limited circumstances:
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, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to attack, may move the court which
imposed the sentence to vacate, set aside or correct the
28 U.S.C. § 2255(a). If a court finds a claim under
§ 2255 to be valid, 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.” Id. at §
2255(b). To obtain this relief on collateral review, a
petitioner must clear a significantly higher hurdle than
exists on direct appeal. See United States v. Frady,
456 U.S. 152, 166 (1982) (rejecting the plain error standard
as not sufficiently deferential to a final judgment).
Ineffective Assistance of Counsel
prevail on a claim of ineffective assistance of counsel,
Walker must show that: (1) “counsel's
representation fell below an objective standard of
reasonableness”; and (2) “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S.
668, 688, 694 (1984). These two elements are commonly
referred to as Strickland's performance and
prejudice prongs. Reece v. United States, 119 F.3d
1462, 1464 n.4 (11th Cir. 1997). If a petitioner fails to