United States of America v. Virden

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MATTHEW VIRDEN, 	)
)
Defendant-Petitioner, 	)
)
v. 	)
)
UNITED STATES OF AMERICA, 	)
)
CASE NO. 5:24-cr-189
CASE NO. 5:25-cv-1628
JUDGE BRIDGET MEEHAN BRENNAN
MEMORANDUM OPINION
AND ORDER
Plaintiff-Respondent. 	)
Before the Court is Defendant-Petitioner Matthew Virden’s (“Virden”) pro se Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 36.) The United
States of America (“government”) opposed (Doc. 44), and the matter is ripe for review. For the
reasons stated herein, Virden’s Motion is DENIED.
I. 	BACKGROUND
On May 30, 2024, a federal grand jury returned a four-count Indictment charging Virden
with the following offenses: Distribution of a Controlled Substance in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C) (Count 1); Possession with Intent to Distribute Controlled Substance
in violation of §§ 841(a)(1) and (b)(1)(C) (Counts 2, 3); and Felon in Possession of a Firearm
and Ammunition in violation of 18 U.S.C. § 922(g)(1) (Count 4). (Doc. 9, Indictment.)
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A. 	Binding Plea Agreement and Change of Plea Hearing
On October 1, 2024, Virden pleaded guilty to all counts pursuant to a binding Rule
11(c)(1)(C) plea agreement. (Doc. 28, Plea Agreement.) The plea agreement set forth, among
other things, the statutory penalties, a stipulated offense level computation, appeal waiver (with
reservation of appeal rights), and Virden’s satisfaction with defense counsel.1 (Id.). The parties
stipulated to a base offense level of 26 pursuant to U.S.S.G. § 2D1.1(c)(7) and the two-level
specific offense characteristic for possessing a firearm pursuant to § 2D1.1(b)(1). (Id. at 172-
73.)2 There was no agreement as to Virden’s Criminal History Category. (Id. at 173.)
Notwithstanding, the total agreed-upon term of incarceration was 70 months. (Id. at 172.)
Virden was placed under oath at the beginning of the change of plea hearing. (Doc. 43,
Change of Plea Tr., at 291.) Virden stated he discussed all the facts and circumstances
surrounding his case with defense counsel. (Id. at 295.) When asked if he spoke with defense
counsel “about the elements of the offenses and your possible defenses,” Virden said, “Yes, Your
Honor.” (Id.) Consistent with the plea agreement, Virden reiterated being fully satisfied with his
defense counsel’s advice to him and representation of him. (Id.)
In addressing the voluntariness of his pleas, the following exchange occurred:
COURT: 	And did you sign under the following representation to the Court . . ., that
being that you’ve read the entire document, you’ve discussed it with your
counsel, you’ve initialed each page to signify that you understand and
approve of the provisions on that page, that you’re entering into this
agreement voluntarily and of your own free will with no threats having
1 Virden also agreed to the forfeiture of $11,140 in U.S. Currency, a Sig Sauer .40 caliber pistol
with magazine and ammunition, a 2017 GMC Acadia, and a 2023 Cadillac Escalade. (Id. at
169.)
2 For ease and consistency, record citations are to the electronically stamped CM/ECF document
and PageID# rather than any internal pagination.
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been made to you, nor were you under the influence of anything that could
impair your ability to understand these terms?
Was that your representation?
VIRDEN: 	Yes, Your Honor.
(Id. at 296.)3 The Court inquired further:
COURT: 	No one has persuaded you or made any promises beyond what’s in here to
entice you to plead guilty, have they?
VIRDEN: 	No, Your Honor.
COURT: 	Has anyone threatened you to coerce you or coerced you to accept these
terms?
VIRDEN: 	No, Your Honor.
COURT: 	So, your decision today is of your own free will?
VIRDEN: 	Yes, Your Honor.
(Id. at 297.)
Sentencing was addressed. (Id. at 303-05.) Virden acknowledged the Court alone
determines the offense level calculation, his criminal history category, the corresponding
advisory Guidelines range, and the appropriate sentence. (Id.at 304.) Because the parties
presented a Rule 11(c)(1)(C) agreement, Virden acknowledged agreeing to a 70-month term of
incarceration. (Id. at 304-05.) Defense counsel stated the plea agreement was fully discussed
with Virden. (Id. at 305.)
The prosecutor summarized the factual basis. (Id. at 307-10.) Virden acknowledged the
factual basis and agreed the government could prove those facts – and therefore each element of
3 Virden signed the plea agreement under this specific representation on September 9, 2024.
(Doc. 28 at 180.) During the change of plea hearing on October 1, 2024, the Court confirmed
this representation had not changed. (Doc. 43 at 296.)
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each offense charged – beyond a reasonable doubt. (Id. at 310.) Moving to the appellate waiver
provision, Virden acknowledged the written provision and that he discussed his appeal rights
with counsel. (Id. at 310-311.) Virden further acknowledged waiving his appeal rights except
for two: (1) the right to appeal any sentencing exceeding the statutory maximums, and (2) the
right to appeal a term of incarceration that exceeds 70 months.
Virden pleaded guilty to all counts. (Id. at 311-12.) The Court deferred acceptance of the
plea agreement but found Virden fully competent and capable of entering informed pleas, that he
was aware of and understood the consequences of his guilty pleas, and that his pleas were
knowing and voluntary. (Id. at 312-13.)
B. 	Presentence Report and Guidelines Calculation
The Presentence Report (“PSR”) differed from the plea agreement in two respects. First,
the plea agreement stipulated to a base offense level of 26. (Doc. 28 at 172.) However, pursuant
to U.S.S.G. § 2D1.1(c)(5), the PSR determined the base offense level was 30. (Doc. 24 at 110.)
And while the plea agreement did not include the two-level specific offense characteristic for
maintaining a drug premises, the PSR did. (See id.; Doc. 28 at 172.)
Defense counsel timely objected to the PSR’s base offense level and the additional two-
levels for maintaining a drug premises (Doc. 24 at 130-31), and he submitted a sentencing
memorandum further stating these objections (Doc. 26).
C. 	Sentencing Hearing
At the beginning of the sentencing hearing, Virden acknowledged having sufficient time
with his “counsel to read, review, and discuss the presentence report.” (Doc. 41, Sentencing Tr.,
at 237.) After hearing from both counsel and the Probation Officer, the Court sustained Virden’s
objections to the PSR and found the offense level calculation in the parties’ plea agreement was
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consistent with the applicable Guidelines provisions. (Id. at 238-39, 243-46; Doc. 27, Revised
Final PSR, at 153.) The base offense level was 26 and only one specific offense characteristic,
that being the two-levels for possessing a firearm, applied. (Doc. 41 at 246.) With acceptance of
responsibility, the total offense level was 25. (Id. at 247.)
No objection was stated to Virden’s criminal history calculation. Virden’s subtotal
criminal history score placed him in Criminal History Category III. (Doc. 27 at 153.) The
corresponding advisory Guidelines range was 70-87 months. (Id. at 159; Doc. 41 at 247.)
At sentencing, defense counsel discussed a possible motion to suppress. (Doc. 41 at 249-
50.) He explained that he and Virden discussed a possible Fourth Amendment challenge on
staleness grounds. (Id.) Defense counsel stated: “[T]hat was going to be a suppression issue . . .
[but] because of the resolution that we reached with the government, we did not do that.” (Id. at
250.) Mr. Virden was invited to address the Court. (Id. at 250-51.) Virden acknowledged the
opportunity, but he declined to speak and did not dispute his counsel’s statement that Virden
elected to forego a Fourth Amendment challenge to secure a favorable plea agreement. (Id. at
251.)
The Court accepted the Rule 11(c)(1)(C) agreement and sentenced Virden to a term of
incarceration of 70 months. (Id. at 253.) No direct appeal followed.
D. 	Virden’s § 2255 Motion
Three grounds for relief are stated. (See Doc. 36.) The first ground for relief alleges a
Fourth Amendment violation because agents entered his parents’ Akron residence pursuant to a
“document warrant” and remained in the home while swearing out a “drug warrant” to a judicial
officer “after they saw evidence.” (Id. at 205.) The second ground for relief asserts the search
was unlawful because agents did not initially enter with a “drug warrant.” (Id. at 206.) The third
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and final ground for relief challenges probable cause but does not specify which warrant was
purportedly deficient. (Id. at 208.) At bottom, Virden’s Motion centers on the fact that no
suppression motion was filed nor Franks hearing requested.4 (Id. at 206, 207, 209.)
In response to the form question about pursuing an appeal for each of the three grounds
for relief, Virden states the following:
Ineffective assistance of counsel. Fail[ure] to litigate my 4th amendment
right in a timely manner suppression motion failed to file a Frank Hearing
to validate search warrant. 09/05/2024 order, (n[o]n-document[] as to
Matthew Virden(1) the court previously set a hearing for 09/12/2024 at
0900am, in the even[t] a motion to suppress w[a]s filed. No such motion
was filed. Accordingly, the hearing is can[c]elled. Judge Bridget Me[e]han
[Brennan] on 09/05/2024. Did not have knowledge to file motion. Failure
to raise it at trial or on direct appeal, lack of understanding, waiver, or the
claim not being cognizable on federal habeas corpus review.
(Id.)
The government’s response provides important context. (See Doc. 44.) DEA agents
sought and obtained federal search warrants for Virden’s storage unit and the Akron residence.
(Id. at 329.) The agents initially entered the Akron residence pursuant to a document warrant for
evidence of drug proceeds. (Id.) In executing the search warrant, agents came upon a digital
scale and residue. (Id.) “Agents then ceased searching and obtained a federal search warrant
authorizing the search for narcotics.” (Id.)
II. 	LAW AND ANALYSIS
Under 28 U.S.C. § 2255, a federal prisoner may petition to vacate, set aside, or correct
the judgment of conviction and sentence based on claims that: (1) “the sentence was imposed in
violation of the Constitution or laws of the United States,” (2) “the court was without jurisdiction
4 Virden also states the officers caused emotional distress, invaded his and his family members’
privacy, and used excessive force. (See Doc. 36 at 205, 206, 208.) As the government correctly
points out, not one of these is a basis for federal habeas relief. See 28 U.S.C. § 2255(a).
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to impose such sentence,” or (3) “the sentence was in excess of the maximum authorized by law,
or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). It is therefore the petitioner’s
burden to demonstrate “‘(1) an error of constitutional magnitude; (2) a sentence imposed outside
the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire
proceeding invalid.’” Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003) (quoting
Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)).
Pro se § 2255 petitions are liberally construed. McCormick v. Butler, 977 F.3d 521, 528
(6th Cir. 2020). “But the liberal construction rule does not ‘abrogate basic pleading essentials,’
. . . such as the requirement that a § 2255 petitioner state the factual bases underpinning every
claim for relief.” Jimenez v. United States, No. 21-5201, 2022 WL 2610337, 2022 U.S. App.
LEXIS 18863, at *8 n.3 (6th Cir. July 8, 2022) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th
Cir. 1989)).
Every criminal defendant is entitled to effective assistance of counsel during the plea and
sentencing phases. Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).
Claims of ineffective assistance of counsel, like those raised here, must be assessed using the
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed 2d 674 (1984), two-pronged
framework. This is petitioner’s burden. Strickland, 466 U.S. at 687. To meet this burden,
Virden must establish both Strickland prongs by a preponderance of the evidence. See United
States v. Brown, 957 F.3d 679, 690 (6th Cir. 2020).
The first Strickland prong requires a petitioner to establish his “counsel’s representation
fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Meaning, in
viewing the record as a whole, the alleged “acts or omissions were outside the wide range of
professionally competent assistance.” Id. at 690. “Judicial scrutiny of counsel’s performance
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must be highly deferential” and evaluated from the perspective existing at the time of the
representation, not from the perspective of hindsight. Id. at 689. The second Strickland prong
requires demonstrated prejudice: “[t]he defendant must show that there is a reasonable
probability that, but for defense counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.
A petitioner who pleaded guilty must demonstrate “an error of constitutional magnitude
which had a substantial and injurious effect or influence on the guilty plea . . ..” Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003). “When a criminal defendant has solemnly admitted in
open court that he is in fact guilty of the offense with which he is charged, he may not thereafter
raise independent claims relating to the deprivation of constitutional rights that occurred prior to
the entry of the guilty plea,” Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed.
2d 235 (1973), unless an ineffective assistance of counsel claim “attack[s] the voluntary or
intelligent nature of his plea,” United States v. Stiger, 20 F. App’x 307, 308-09 (6th Cir. 2001).
See also Kotsonis v. United States, No. 17-5099, 2017 WL 7310633, 2017 U.S. App. LEXIS
28111, at *6-7 (6th Cir. Sept. 12, 2017).
A. Objective Reasonableness
As an initial matter, Virden’s statement that he “[d]id not have knowledge to file [the]
motion” to suppress is wholly contradicted by the record. (Doc. 36 at 206, 207, 209.) Virden
and his counsel discussed filing a motion to suppress. (Doc. 41 at 249-50.) Defense counsel
explained a possible challenge on staleness grounds. (Id.) The decision not to pursue a pretrial
motion was made so that Virden could secure a favorable plea agreement. (Id.) This was plainly
a strategic decision, not one borne of conduct “outside the wide range of professionally
competent assistance.” Strickland, 466 U.S. at 690-91 (“strategic choices made after thorough
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investigation of law and facts relevant to plausible options are virtually unchallengeable”). What
is more, Virden did not dispute his counsel’s statement that Virden was aware of his right to file a
suppression motion but chose instead to accept the plea agreement.
While under oath, Virden admitted to his guilt and pleaded guilty to all charges. Virden’s
claim that he “lack[ed] understanding, waiver, or the claim not being cognizable on federal
habeas review” is insufficient to challenge the voluntariness of his plea. (Doc. 36 at 206, 207,
209.) Even pro se litigants must present facts in support of their grounds for relief. Virden’s
conclusory statement is wholly unsupported. But even if it was sufficient to suggest he now
challenges the voluntary and intelligent nature of his guilty pleas, the record demonstrates Virden
read the entire plea agreement, reviewed it with counsel, initialed each page to signify his
understanding and consent to the provisions on each page, and then, under oath, pleaded guilty
after telling the Court the decision to plead guilty was his and his alone. Virden knowingly and
voluntarily accepted the terms of the plea agreement and pleaded guilty to all counts. Virden
forfeited his right to challenge the failure to file a non-jurisdictional pretrial motion, and his
claim that defense counsel should have pursued such a motion is meritless. Accordingly, Virden
has not shown that his counsel’s representation was objectively unreasonable.
B. Prejudice
To establish prejudice, Virden must demonstrate that “but for” defense counsel’s alleged
deficiencies, the result would have been different. Strickland, 466 U.S. at 694. Virden has failed
to demonstrate prejudice for the following reasons.
First, Virden obtained a favorable plea offer from the government. The Court accepted
the binding plea agreement and sentenced Virden to the 70-month term of incarceration to which
he agreed.
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Second, where the “failure to litigate a Fourth Amendment claim [] is the principal
allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is
meritorious and that there is a reasonable probability [the proceedings] would have been different
absent the excludable evidence in order to demonstrate actual prejudice.” Kimmelman v.
Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986).
Search warrant affidavits are presumed valid. Franks v. Delaware, 438 U.S. 154, 171, 98
S. Ct. 2674, 57 L. Ed. 2d 667 (1978). To overcome this presumption, Virden must demonstrate
the magistrate judge’s determination of probable cause “was arbitrarily exercised.” United States
v. Allen, 211 F.3d 970, 973 (6th Cir. 2000). Virden has made no such showing. The limited
allegations in his Motion simply state the warrant was not supported by probable cause. (See
Doc. 36 at 206, 208.) Nothing more. (See id.)
To be sure, defense counsel researched and discussed with Virden a possible Fourth
Amendment challenge staleness grounds. (See Doc. 41 at 249-50.) As stated by defense
counsel, two months passed between the controlled buy and the execution of the document
warrant. (Id.) Virden has put forth no other facts or any legal authority in support of an
argument that the two months alleged here would have warranted suppression of the evidence
seized. Indeed, circuit cases suggest the opposite. See United States v. Powell, 603 F. App’x
475, 476-78 (6th Cir. 2015) (eight-month period did not render warrant stale when it “sought
documentary and physical (but non-narcotic) evidence of drug and firearm offenses . . . .”);
United States v. Robinson, 139 F. App’x 654, 658 (6th Cir. 2005) (warrant supported by financial
transactions occurring “more than three months before the issuance of the search warrant” not
stale since “criminal activity could reasonably be believed to be ongoing at that time”).
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Virden’s related references to a Franks hearing are also insufficient. (See Doc. 36 at 206,
207, 209.) District courts hold evidentiary hearings to address challenges to the validity of a
search warrant affidavit only if the defendant (A) makes “a substantial preliminary showing that
the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false
statement or material omission in the affidavit;” and, if such a preliminary showing is made, (B)
“the false statement or material omission [was] necessary” to establish probable cause. United
States v. Bateman, 945 F.3d 997, 1008 (6th Cir. 2019) (citing Franks, 438 U.S. 154; United
States v. Young, 847 F.3d 348-49 (6th Cir. 2017)); United States v. Atkin, 107 F.3d 1213, 1216-17
(6th Cir. 1997). The defendant’s burden in making the substantial preliminary showing of a
knowing falsehood in a search warrant is a heavy one. United States v. Bennett, 905 F.2d 931,
934 (6th Cir. 1990). Virden has made no allegation that the warrants contained deliberate
falsehoods or statements demonstrating reckless disregard for the truth. Id. (citing Franks, 438
U.S. at 171).
Virden’s scant allegations in support of his Motion do not support a finding that “but for”
defense counsel’s alleged failures the matter would have resolved differently. There is no
information before the Court to find that a Fourth Amendment challenge had any merit.
Moreover, Defense counsel dutifully researched possible Fourth Amendment challenges,
discussed those with Virden, and pursued a favorable plea agreement – all with Virden’s
knowledge and consent.
C. 	Evidentiary Hearing
An evidentiary hearing is not required “if the petitioner’s allegations ‘cannot be accepted
as true because they are contradicted by the record, inherently incredible, or conclusions rather
than statements of fact.’” Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (quoting
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Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)). If the record demonstrates material
facts are disputed, the “court must hold an evidentiary hearing to determine the truth of the
petitioner’s claims.” Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999) (citation
omitted). This is the petitioner’s burden. Valentine v. United States, 488 F.3d 325, 333 (6th Cir.
2007); see also Martin v. United States, 889 F.3d 827, 832 (6th Cir. 2018). To meet this burden,
the petitioner must offer more than general assertions or allegations. Id. He must present “a
factual narrative of the events that is neither contradicted by the record nor ‘inherently
incredible.’” Valentine, 488 F.3d at 334.
As explained above, Virden has not demonstrated a disputed fact warranting an
evidentiary hearing. An evidentiary hearing is not required, and the matter is hereby resolved on
the written submissions.
III. 	CONCLUSION
For the reasons stated herein, Defendant-Petitioner Matthew Virden’s pro se Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 36) is DENIED. This
case is terminated and dismissed as final. Pursuant to 28 U.S.C. § 2255(c) and Fed. R. App. P.
22(b), there is no basis on which to issue a certificate of appealability. The Court further certifies
pursuant to 18 U.S.C. § 1915(a)(3) that an appeal from this decision could not be taken in good
faith.
IT IS SO ORDERED.
Date: 	November 10, 2025 	_________________________________
BRIDGET MEEHAN BRENNAN
UNITED STATES DISTRICT JUDGE
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