Stockton v. United States of America
Filing
3
MEMORANDUM AND ORDER denying 530 Motion(in criminal case 00-0352) to Vacate under USC 2255 amending the pro se 503 Motion (in criminal case 00-0352) for 2255 Relief filed by Rolando Stockton. Signed by Judge Marvin J. Garbis on 99-352. (dass, Deputy Clerk) (c/m 7/6/12-das) (Entered: 07/05/2012)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA
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vs.
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ROLANDO STOCKTON
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*
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CRIMINAL NO. MJG-99-0352
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*
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*
MEMORANDUM AND ORDER
The Court has before it Petitioner's Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody entitled "Motion" [Document 530] amending the
pro se Motion for 2255 Relief [Document 503] and the materials
submitted relating thereto.
The Court has held hearings
regarding the motion and has had the benefit of the arguments of
counsel.
I.
PROCEDURAL BACKGROUND
Defendant Rolando Stockton ("Movant") was charged with
Conspiracy to Distribute and Possession with Intent to
Distribute Heroin, in violation of 21 U.S.C. § 846; two counts
of Use and Carrying of a Firearm in Relation to a Drug
Trafficking Crime, in violation of 18 U.S.C. § 924(c); and with
being a Felon in Possession of a firearm and ammunition each in
separate counts in violation of 18 U.S.C. § 922(g)(1).
He was
represented through trial by Godwin Oyewole, Esquire ("Trial
Counsel").
As discussed herein, prior to trial, Movant rejected
certain plea agreements and proceeded to trial.
convicted on all charges.1
At trial he was
At sentencing the Court departed
downward, over Government objection, from a Guideline sentence
of 480 months and sentenced Movant to 330 months.
Movant filed a timely appeal and the Government crossappealed.
The United States Court of Appeals for the Fourth
Circuit affirmed Movant's conviction but reversed the Court's
downward departure.
(4th Cir. 2003).
United States v. Stockton, 349 F.3d 755
The appellate court remanded the case,
directing the Court to resentence Movant to a term of 480
months.
On March 12, 2004, the Court resentenced Movant to 480
months.
On January 5, 2006, Movant, pro se, filed a motion
under 28 U.S.C. § 2255 [Document 494] that the Court initially
denied as time barred [Documents 501, 502].
On July 28, 2006,
Movant, pro se, filed a motion seeking leave to file a belated
appeal from the resentence imposed March 12, 2004 [Document
503].
This motion was denied on July 31, 2006 [Document 504].
On August 14, 2006, Movant, pro se, moved for reconsideration,
alleging that, at sentencing, his then counsel ("Resentencing
1
Prior to sentencing, the Government dismissed one of the
two 18 U.S.C. § 924(c) charges.
2
Counsel") had been directed by the Court to file a timely appeal
and promised to do so [Document 507].
The Court obtained the
transcript of the sentencing proceedings, found that Movant's
allegation was correct, and directed the issuance of a Notice of
Appeal nunc pro tunc to the date of resentencing.
509].
[Document
The Court also appointed current counsel to represent
Movant in the appeal and any post-conviction proceedings.
The
appeal was dismissed by the United States Court of Appeals for
the Fourth Circuit on July 18, 2007.
II.
[Document 518].
PROCEDURAL ISSUE
The Government contends that there is a procedural obstacle
to the Court's consideration of the instant motion.
The Court
does not agree.
As noted above, the original sentence of 330 months was
reversed on appeal and the case was remanded for resentencing to
480 months.
On March 12, 2004, Movant was resentenced.
On that
date, Movant had ample time to file a motion under 28 U.S.C. §
2255.
The transcript of proceedings at resentencing reflects
that the following occurred after sentence was imposed and the
Court stated that Movant could file a § 2255 motion:
3
THE COURT: . . . With regard to the
2255, there's a limitations period to
bear in mind. Now, it seems to me that
there should be no problem in filing a
timely 2255. [Resentencing Counsel]
help him on it. Make sure it gets done
timely.
[RESENTENCING COUNSEL]:
I will.
Hr'g. Tr. 12, Mar. 12, 2004.
Movant, with every reason to believe that his counsel
would, as directed by the Court, file a timely § 2255,
reasonably relied upon Resentencing Counsel to do so.
Resentencing Counsel did not do so, however.
On January 5, 2006, Movant, pro se, filed a letter that the
Court deemed to be a § 2255 motion.
[Document 494].
On July
13, the Court, on the record then before it, denied the motion
as untimely.
[Document 501].
On July 28, 2006, Movant filed a Motion to Alter And/or
Amended Judgment [Document 503] stating therein that he had been
assured by Resentencing Counsel that a timely appeal would be
filed and was assured that it had been filed.
He stated that he
contacted the Court in September 2005 and found that there had
been no appeal filed and that, by that time, the time for filing
a § 2255 motion had expired.
Movant stated that he did not wish
to file an out of time appeal but "instead to use those facts to
prove circumstance warranting equitable tolling of the one year
4
[§ 2255] limitations period."
He cited Davis v. Johnson, 158
F.3d 806, 811 (5th Cir. 1998), holding that the one year § 2255
limitations period is not jurisdictional so that equitable
tolling may be applied.
The Court, not then having the transcript of the
resentencing proceedings, stated, in its Memorandum and Order of
July 31, 2006 [Document 504] denying Movant's motion:
[Movant] . . . states that he was deceived
by his lawyer who falsely told him that he
had filed a timely appeal.
It is this Court's regular practice to
advise Defendants at sentencing of the need
for a timely notice of appeal . . . . If
necessary, the Court would order the
sentencing transcript to establish that the
advice was given in this case."
On August 14, 2006, Movant, pro se, filed a letter that the
Court held constituted a motion for reconsideration [Document
507].
Movant stated in the letter that he had not received the
advice to which the Court referred.
Upon consideration of the
letter, the Court obtained the transcript of Movant's
resentencing proceeding and ascertained what had happened.
In its Memorandum and Order of September 15, 2006 [Document
509], the Court found that Movant reasonably believed that his
attorney would take all steps necessary to avoid his being time
barred from filing a § 2255 motion with regard to his sentence.
5
The Court did not address, in the September 15, 2006, Memorandum
and Order, the matter of Resentencing Counsel's failure to file
a timely § 2255 motion and, instead, had the Clerk file a Notice
of Appeal nunc pro tunc to the resentencing date.
Movant's
appeal, based upon the nunc pro tunc filing date, was dismissed
by the appellate court on July 18, 2007 as untimely because the
time for filing an appeal is jurisdictional.
On August 31, 2007, Movant, pro se, filed a motion in the
instant case under Rule 60(b)(6), including therein the
contention that equitable tolling should apply to render the §
2255 motion filed January 5, 2006 timely.
In response to that
motion, Government counsel stated, on October 17, 2007:
It would seem the most provident and
efficient course of action at this time, is
for the defendant to simply file his
petition under 28 U.S.C. § 2255. The
government will respond to the defendant's
specific complaints at that time.
Government's Response to Defendant's Motion Pursuant to F.
R. Civ. P. 60(b)(6) [Document 522] at 3.
On November 16, 2007, the Court appointed current counsel
for Movant.
After obtaining pertinent documents, Movant's
counsel conferred with Government counsel and, by letter of
June 10, 2008, advised the Court:
On June 6, 2008, I spoke with [Government
counsel] regarding the status of the case.
6
She indicated to me that if Mr. Stockton
were to file a § 2255 petition, the
Government would likely oppose the
substantive allegations contained within the
petition, but would not make any procedural
argument asking for the case to be dismissed
based on the timing of the petition. Based
on my conversation with [Government
counsel], it is my intention to file a §
2255 petition within a reasonable time
frame.
Letter at 2, June 10, 2008.
On February 5, 2009, counsel for Movant filed the instant
motion, a document entitled "Motion" [Document 530] presenting
the ground that Movant had been denied the effective assistance
of counsel by trial counsel.
On March 16, 2009, the Government
filed a Motion to Dismiss the "Motion" as an unauthorized
successive petition under § 2255 [Document 536].
It is not
necessary to address the question of whether this action was
violative of Government counsel's agreement not to seek
dismissal "based on the timing2 of the petition."
As set forth more fully in the Memorandum and Order filed
June 19, 2009 [Document 540] the Court held that the January 5,
2006 pro se § 2255 motion should not have been denied as
untimely.
See United States v. Prescott, 221 F.3d 686, 688 (4th
Cir. 2000) stating:
2
I.e., whether the word "timing" refers only to lateness in
a calendar sense.
7
. . . § 2255's limitation period is subject
to equitable modifications such as tolling.
. . . Typically . . . circumstances
[warranting equitable tolling are] external
to the party's own conduct thus making it
unconscionable to enforce the limitation
period against the party.
(internal quotations omitted).
The Court therefore, rescinded its dismissal of the pro se
§ 2255 motion [Document 503] and deemed the document entitled
"Motion" filed by counsel [Document 530] to constitute an
Amendment to Petitioner's Motion under § 2255 [Document 503].
The Court, having reconsidered the matter, confirms its
prior ruling and finds that the Movant's substantive issues must
be addressed.
III. SUBSTANTIVE CONTENTIONS
By the instant motion, Movant contends that Trial Counsel's
and Resentencing Counsel's representation violated his Sixth
Amendment right to effective assistance of counsel.
To prevail on this contention, Movant must show (1) that
counsel's representation fell below an objective standard of
reasonableness,3 and (2) that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
3
Thus overcoming a presumption that counsel's conduct was
reasonable.
8
proceedings would have been different.
Washington, 466 U.S. 668, 687 (1984).
Strickland v.
A reasonable probability
is a probability sufficient to undermine confidence in the
outcome of the proceedings.
Id. at 694.
In this case the Movant contends that Counsel and
Resentencing Counsel were ineffective in regard to plea
agreement offers and in failing to seek to delay the
resentencing to await decision in a then-pending Supreme Court
case.
A.
Plea Agreement Offers
1.
The Contention
Movant was indicted in a Superseding Indictment [Document
33] on August 19, 1999 and Trial Counsel was appointed by
September 22, 1999.
A Second Superseding Indictment was filed
September 23, 1999) [Document 70] and Movant was arraigned
thereon the next day.
As discussed more fully below, the Movant was offered two4
opportunities to plead guilty pursuant to agreements that would
4
Movant testified that there was a third offer made during
trial. He stated: "Right at the trial, the government came,
before the judge, just before the judge came back and offered me
12 years." Hr'g Tr. 68, Aug 20, 2009. Movant stated that Trial
Counsel said the case was going well and there was no discussion
of the offer. The Government denies that there was any third
9
have called for a sentence of no more than ten years.
Movant
rejected these offers, proceeded to trial and was convicted.
He
was originally sentenced to a 330 month term but, following his
appeal and the Government's cross-appeal, was resentenced to 480
months.
Movant, by current counsel, stated in the instant motion:
Trial counsel was ineffective for improperly
advising [Movant] of the maximum penalty for
his offenses and the applicable guidelines
range. [Movant] relied on trial counsel’s
faulty advice and rejected a plea offer.
[Movant] was offered a plea that would have
resulted in six-years5 incarceration.
Believing, based on trial counsel’s
erroneous advice, that he faced no more than
ten years incarceration if he lost the
trial, [Movant] rejected the plea offer.
[Movant] was later offered a second plea for
twelve6 years. That plea was also rejected.
Mot. ¶ 12.a.
The Court will address, in turn, the contentions that
Movant was unaware of the maximum possible penalty he faced if
he proceeded to trial and that Trial Counsel did not effectively
advise him regarding his decision to accept or reject the
proffered plea agreements.
offer and Trial Counsel did not testify that there was one. The
Court finds it more likely than not that Movant's recollection
of such an offer is erroneous.
5
As discussed herein, the first offer, in writing, provided
for a likely sentence in the range of 92-115 months.
6
The evidence establishes that the second offer would have
been to a charge providing a 10 year maximum sentence.
10
2.
The Frye and Lafler Decisions
The Supreme Court has recently issued two decisions
addressing the question of ineffective assistance of counsel
with regard to a defendant's rejection of a plea agreement.
Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376 (2012) and
Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399 (2012).
In Frye, a defendant (a repeat driving on revoked license
offender) was charged with a felony providing a possible four
year prison term.
The prosecutor sent defendant's counsel a
letter proposing two possible plea agreements, under one of
which there would be a misdemeanor plea with a recommendation of
service of a 90 day sentence and under the other a plea to a
felony with a recommendation of a 3 year sentence, no
recommendation of probation but a recommendation of service of
10 days in jail.
132 S. Ct. at 1404.
Counsel did not convey
the offers to the defendant and they expired.
Id.
The
defendant was then arrested again for driving on a revoked
license and ended up pleading guilty without a plea agreement.
Id.
He received a three year prison sentence.
Id. at 1404-05.
The Frye court stated:
This Court now holds that, as a general
rule, defense counsel has the duty to
communicate formal offers from the
11
prosecution to accept a plea on terms and
conditions that may be favorable to the
accused. Any exceptions to that rule need
not be explored here, for the offer was a
formal one with a fixed expiration date.
When defense counsel allowed the offer to
expire without advising the defendant or
allowing him to consider it, defense counsel
did not render the effective assistance the
Constitution requires.
* * *
To show prejudice from ineffective
assistance of counsel where a plea offer has
lapsed or been rejected because of counsel's
deficient performance, defendants must
demonstrate a reasonable probability they
would have accepted the earlier plea offer
had they been afforded effective assistance
of counsel. . . . To establish prejudice in
this instance, it is necessary to show a
reasonable probability that the end result
of the criminal process would have been more
favorable by reason of a plea to a lesser
charge or a sentence of less prison time.
Id. at 1408-09.
In Lafler, a defendant charged with assault with intent to
commit murder and other charges was offered a plea agreement
that included a recommendation for a sentence of 51 to 85
months.
132 S. Ct. at 1383.
Counsel advised the Defendant to
reject the offer because, counsel said, the prosecution could
not establish intent to commit murder.
that the advice was deficient.
Id.
Id. at 1384.
Both sides agreed
The Defendant
proceeded to trial, was convicted and received a sentence of 185
to 360 months.
Id. at 1383.
12
The Lafler Court stated:
Defendants have a Sixth Amendment right to
counsel, a right that extends to the pleabargaining process. During plea
negotiations defendants are "entitled to the
effective assistance of competent counsel" .
. . . In this case all parties agree the
performance of respondent's counsel was
deficient when he advised respondent to
reject the plea offer on the grounds he
could not be convicted at trial. . . .
The question for this Court is how to apply
Strickland's prejudice test where
ineffective assistance results in a
rejection of the plea offer and the
defendant is convicted at the ensuing trial.
To establish Strickland prejudice a
defendant must "show that there is a
reasonable probability that, but for
counsel's unprofessional errors, the result
of the proceeding would have been
different." In the context of pleas a
defendant must show the outcome of the plea
process would have been different with
competent advice.
Id. at 1384 (citations omitted).
To prevail, Movant must establish that Trial Counsel
provided ineffective assistance in regard to Movant's decision
to reject the offered plea agreements and that, but for the
ineffective assistance, there is a reasonable probability that
the result would have been different.
1409; Lafler, 132 S. Ct. at 1384.
13
See Frye, 132 S. Ct. at
The instant case arises in a significantly different
context from that addressed in Frye and Lafler.
Movant does not
contend that he was uninformed of the plea agreement offers (as
in Frye, 132 S. Ct. at 1404) nor that he was he given
incompetent advice to reject the offers and proceed to trial (as
in Lafler, 132 S. Ct. at 1384).
Movant contends that he was ineffectively represented
because Trial Counsel erroneously advised him that the maximum
potential sentence faced if he proceeded to trial was ten years,
and that Trial Counsel did not affirmatively recommend
acceptance of the plea agreements and did not persuade him to
accept the offer.
3.
Can there be a remedy?
At the initial argument on the instant motion, Government
counsel took the position that the Court did not have authority
to provide any remedy in the instant case.
It is unnecessary to
discuss the matter further because the same argument was
presented to, and rejected by, the Supreme Court.
As stated in Lafler:
Petitioner and the Solicitor General . . .
contend there can be no finding of
Strickland prejudice arising from plea
bargaining if the defendant is later
convicted at a fair trial. The three
14
reasons petitioner and the Solicitor General
offer for their approach are unpersuasive.
132 S. Ct. at 1385.
4.
Possible Maximum Sentence
Movant contends that Trial Counsel consistently advised him
that if he proceeded to trial on the charges against him and was
convicted, the maximum sentence that could be imposed on him was
ten years.
However, the Court does not find that Trial Counsel
provided such advice.
Nor does the Court find that Movant was under the
impression that he faced no possible sentence in excess of 10
years.
To the contrary, the evidence establishes that Movant
was made aware on the record of court proceedings and in the
written plea agreement offered to him, that he if he proceeded
to trial, he faced a potential sentence in excess of ten years.
Indeed, he was informed that he faced a possible life sentence.
On September 24, 1999, Movant, represented by trial
counsel, was arraigned7 before then Magistrate Judge8 Bredar.
the course of the arraignment, the following occurred.
THE COURT: Ms. [Assistant United
States Attorney] Bennett, why don't you
7
On the Second Superseding Indictment. Ultimately, there
were five superseding indictments.
8
Now District Judge.
15
In
summarize the charges that are pending
against this particular defendant,
together with the maximum possible
penalties that could be imposed if he
were convicted.
MS. BENNETT: Yes, Your Honor. The
defendant is charged in count seven
with the attempted murder of Ricky
Ricardo Jones in aid of racketeering.
***
The maximum penalty for this count is
ten years. Mr. Stockton is also
charged in count eight with knowingly,
willfully and intentionally conspiring
with the other named defendants and
others known and unknown to the grand
jury to distribute and possess with
intent to distribute heroin, and the
maximum statutory penalty on count
eight is life imprisonment. . .
***
THE COURT: It is also true that if the
defendant was convicted on either
count, he would be subject to a
mandatory --- assessment of $100 per
count, and Mr. Stockton, I also advise
you that if you were convicted in this
case on count seven and sent to prison,
you would also be subject to imposition
of a term of supervised release which
could be up to three years in length,
and that would follow the service of
the term of imprisonment.
***
With respect to count eight, if you
were convicted and ordered to serve a
16
term of imprisonment and if that term
was less than life, you could also be
ordered to serve a term of supervised
release, and in that case it could be
up to five years in length.
***
Do you feel that you understand the
nature of these two charges as set out
in count seven and eight, and the
maximum possible penalties that could
be imposed upon you if you were
convicted in this case?
THE DEFENDANT:
Yes, I do.
Hr'g Tr. 3-5, Sept. 24, 1999 (emphasis added).
Moreover, when orally denying pretrial release, the
Magistrate Judge stated: "[the] maximum term of imprisonment
[if] the defendant is convicted in this case is life."
Hr'g Tr.
28, Sept. 24, 1999.
Later, on or about October 5, 2000, Government counsel sent
Trial Counsel a letter setting forth the terms of an offered
plea agreement.
This agreement, if accepted, would require
Movant to plead guilty to a One Count Information that would
charge a “felon in possession” count under 18 U.S.C. § 922(g)(1)
and would require the Government to dismiss all other charges.
The letter states that the parties agree that the Guideline
17
Offense Level would be at least 24.
As to Criminal History, the
letter states:
Your client understands that there is no
agreement as to his criminal history or
criminal history category, and that his
criminal history could alter his offense
level. It is contemplated that the
defendant falls into Criminal History
Category V and is not believed to be an
armed career criminal.
* * *
Mr. Stockton understands that his criminal
history may affect his offense level and
criminal history category if he is found to
be an Armed Career Criminal pursuant to 18
U.S.C. Section 924(e) and U.S.S.G. Section
4B1.4.
Plea letter 3-4, Oct. 5, 2000.
If Movant had been sentenced in the range for Offense Level
24 and Criminal History Category V, his sentence would have been
between 92 and 115 months.
While the letter stated that the
parties contemplated that Movant would receive a sentence of no
more than ten years, the letter expressly warned that there was
a possibility of a greater sentence, stating:
The maximum sentence provided by statute for
the offense to which your client is pleading
guilty is as follows: Imprisonment for ten
years without parole, followed by a term of
supervised release of at least two years,
but not more than three years, and a fine of
up to $250,000. In the event that your
client is found to be an Armed Career
Criminal, as defined at 18 U.S.C. Section
18
924(e) and U.S.S.G. Section 4B1.4, the
maximum sentence provided by statute for
violation of 18 U.S.C. Section 922(g)(1) is
as follows:
Imprisonment for a minimum mandatory
sentence of fifteen years without parole and
up to life imprisonment without parole,
followed by a term of supervised release of
up to five years and a fine of up to
$250,000.
Id. at 1-2.
Trial Counsel testified that he reviewed this offer letter
with Movant "line by line."
denies this.
Hr'g Tr. 29, Aug. 20, 2009.
Movant
It is true that Trial Counsel's memory of details
of this specific case was sketchy.
Thus, his testimony shall be
taken to indicate that a line by line review would have been his
normal practice.
Nevertheless, the Court finds it more likely
than not that Trial Counsel reviewed the plea agreement letter
in at least sufficient detail to include a review of the
statement therein of the maximum potential sentence faced.
Moreover, Movant himself had ample opportunity to read the
letter and understand that it stated, as had the prosecutor and
Magistrate Judge at arraignment, that there was a possible life
sentence even under the reduced charge to which the offer
related.9
9
Of course, the plea agreement reflected the belief that
Movant would not receive more than a ten year sentence under the
agreement. However, there was a reference to a possible –
19
Moreover, it had to be clear to Movant that the offer
called for a plea to only one of the several charges against him
and that if the offer were accepted, the Government would not
proceed on other, more serious charges.
Hence, it is not
credible that Movant would believe that if he rejected the plea
agreement, proceeded to trial on all charges and was convicted
he could not be sentenced to any more than ten years.
Nor is it
feasible to believe that, in discussing the proffered plea
agreement, Trial Counsel would render advice refuted by the
express terms of the proposed agreement being reviewed.
Finally, Government counsel have presented an affidavit
stating that, on March 29, 2001, at a "reverse proffer" session
with Movant and Trial Counsel, they summarized the anticipated
trial evidence and offered Movant an agreement that would permit
him to plead guilty to a weapons offense carrying a ten year
maximum sentence.
They stated in their affidavit that:
Your affiants told Stockton, in clear terms,
that he also faced life in prison were he to
reject the plea offer. Stockton was told
that a superseding indictment would be
sought from the grand jury, and it would
contain various drug and weapon counts.
Stockton was informed by your affiants that
he faced ten years for a violation of 18
although unlikely – life sentence even under the plea agreement,
refuting the contention that Movant was unaware that a more than
10 year sentence was possible even if should he proceed to trial
and be convicted on all charges pending against him.
20
U.S.C. Section 924(c) for the shooting of
Clinton Williams, and that the ten years
would be consecutive to any other sentence
he would receive should he be convicted at
trial.
Attorneys' Affidavit [Document 566] ¶ 4.
In his testimony, Movant agreed that there was a meeting on
March 29, 2001 at which Government counsel offered a “ten-year
plea.”
Hr'g Tr. 66, Aug. 20, 2009.
As to being informed of the
possible sentence faced, the record reflects the following
testimony on cross-examination.
CROSS-EXAMINATION OF STOCKTON
Q. And you have no recollection at all when
Mr. Warwick and I were meeting with you that
we told you you were facing life? None at
all?
A. When I meet with you and Mr. Warwick and
my counsel, that's all was going on was a
bunch of screaming, Y'all telling me you
going to get found guilty, you going to get
found guilty –Q. And you're going to go to jail -MR. LAWLOR: Objection, Your Honor.
wasn't finished with his answer.
THE COURT:
answer.
All right.
He
Finish your
A. You going to get found guilty, you going
to get found guilty and basically, that was
basically it. It wasn't no you facing this
or you looking at this. There was none of
that.
21
Q. So we were screaming at you you're going
to be found guilty -A. You said take this, take this. You
better take it, you better take it, we going
to find you guilty.
Q. And we didn't include in that statement
because if you don’t, you're going to get
life?
A. I basically shut everything off I mean
because –Q. So you didn't listen to what we said -MR. LAWLOR: Objection, Your Honor.
Can he finish his answer, please?
THE COURT:
Let him finish his answer.
A. Yeah. Basically, I mean I looked at my
lawyer and my lawyer said he would be down
there to talk to me and that was it. I
basically – we talked but it was about ten
minutes we was in there and it was a bunch
of screaming going on. Y'all telling me
what I should do and, you, basically –- that
was basically it.
Q. And you didn't ever ask why we were
screaming at you to take ten years when
that's the maximum you were facing?
A. No. The thing is this, right. I know I
mean from people coming back and forth
speaking with the prosecutors, that I mean I
felt anyway that y'all probably wanted me to
testify and that wasn't going to happen. So
what you were saying, what y'all was saying,
I wasn't really hearing.
22
Q. Mr. Stockton, you were the very last
defendant out of about 2. Who were going to
testify against -A. Maybe it was somebody else y'all had in
mind. I don't know. . .
Hr'g Tr. 85-86, Aug. 20, 2009.
Movant objects to the Court's consideration of the
affidavit of Government counsel without the opportunity to
cross-examine them.
Although the Court has no reason to doubt
the truthfulness of Government counsel, the Court would permit
such cross-examination were it necessary to rely upon any
disputed statements in the affidavit.
not necessary.
However, such reliance is
As discussed above, by the time of the March 29,
2001 session, Movant had been informed in at least two manners at arraignment and in the October 5, 2000 plea agreement letter
- that he faced a possible life sentence and must have been
aware of this possibility.
Moreover, even on Movant's version
of the March 29, 2001 session, he does not deny that the
prosecutors told him that he possible faced life imprisonment
but states that he did choose to listen to what the prosecutors
said.
In sum, the Court does not find that Trial Counsel advised
Movant that he faced a maximum sentence of ten years were he to
be convicted at trial of the charges against him in the
23
Superseding Indictment.
Moreover, even if Trial Counsel did
not, himself, advise Movant that he would face a potential
sentence of as much as life imprisonment, this information was
presented to Movant at arraignment by the Magistrate Judge and
prosecutor and in the offered plea agreement that was reviewed
with Movant.
Accordingly, Movant is not entitled to relief due to
erroneous advice by Trial Counsel that he faced no more than a
ten year sentence if he rejected the plea agreements available
to him.
B.
Failure to Persuade Movant to Plead Guilty
As Justice Kennedy observed in Frye, it is difficult "to
define the duty and responsibilities of defense counsel in the
plea bargain[ing] process."
132 S. Ct. at 1408.
The Justice
stated:
'The art of negotiation is at least as
nuanced as the art of trial advocacy and it
presents questions farther removed from
immediate judicial supervision.' Bargaining
is, by its nature, defined to a substantial
degree by personal style. The alternative
courses and tactics in negotiation are so
individual that it may be neither prudent
nor practicable to try to elaborate or
define detailed standards for the proper
discharge of defense counsel's participation
in the process.
24
Id. (citations omitted).
In this case, Trial Counsel was faced with the need to
provide competent representation while not destroying the
attorney/client relationship.
Trial Counsel provided Movant
with the written and oral plea agreements and stated that the
decision was the client's and not his.
In the hearing, Trial
Counsel testified about his advice.
THE COURT: Okay. Can I just be clear, Mr.
Oyewol[e]? I may have missed it. What was
your advice? What was your advice with
regard to these plea offers?
THE WITNESS: Well, Your Honor, I do not
remember exactly what I said. But I told
him that the bottom line, the final decision
is his and his alone and as a matter of
fact, the court will ask him whether that
was the decision he wanted to make.
THE COURT: Well, do you recall whether you
said I advise you to take this offer or
advise you to reject this offer?
THE WITNESS: I don’t know if I said it in
those words, but I told him that it was a
good offer. I told him it was a good offer.
But I'm not sure what language I used to
accept or not to accept it. But I remember
that I said it was a good offer. But
whether he accepts it or not is his decision
to make. And you know in the cell that we
have talked about the case all the time and
every time. It was clear to me that he had
a decision to make.
Hr'g Tr. 55-56, Aug. 20, 2009.
25
Trial Counsel also testified that, as Movant had stated at
his sentencing, the client always professed his innocence:
Q. What was the position that Mr. Stockton
took every time you made him an offer?
A. Well, every time I mentioned that offer
to him, his position was what he stated in
open court. It was in the sentencing
transcript. It's on page 27 [of the
sentencing transcript], that he did not, he
could not plead to it if he didn't do it,
and he could not plead guilty.
Q. He wouldn't plead guilty essentially to
anything because he was innocent?
A. That is correct.
27.
I think it's on page
Q. But other than at sentencing, when he
said it out loud, did he communicate that to
you?
A. Yes, yes.
court, yes.
Both in court and out of
Hr'g Tr. 12, July 19, 2011.
Movant denies that Trial Counsel stated that the offers
were "good."
The Court, although finding that Trial Counsel
testified truthfully to the extent of his recollection, finds
that he could not state the precise words used in his
discussions with Movant.
However, while the Court does not find
that Movant in fact stated that the offers were "good offers,"
the Court does find that Trial Counsel presented the terms of
the offers, answered whatever questions Movant may have asked,
26
and in no way recommended or suggested that the offers should be
rejected.
Movant presented the testimony of William Purpura, Esquire,
a highly respected member of the criminal defense bar.
Over the
objection of the Government, Mr. Purpura was permitted to state
his opinion that Trial Counsel did not meet the standard of care
for reasonably competent defense counsel.
In particular, Mr.
Purpura testified as follows:
Q. Now, when you or competent counsel,
either or both, take a plea offer to a
client, is it your practice and do you
believe it's the obligation of defense
counsel to make an affirmative
recommendation one way or the other vis-àvis the plea offer?
A. It is the obligation of a defense
attorney to make a recommendation, and an
affirmative recommendation based on all of
the factors that the defense attorney has
before him.
***
A. [T]his would be the classic case where I
would hammer a plea agreement, and a
competent lawyer would hammer a plea
agreement.
Q. All right. Let me, and I apologize in
this case, let me ask you what you mean when
you say hammer it. What do you mean by
that? If you could sort of flush [flesh]
that out for me a little bit.
A. What I mean by hammer a plea agreement
would be to explain in detail, not only
27
explain, but put down in writing exactly
what the client faces, to visit the client,
spend time with him, let him know what 40
years in federal prison really means, the
likelihood of a conviction as we already
talked about. I would go past that, aside
from spending time, we can and we have often
in this district, we’ve had the assistance,
and I have used, of other attorneys that
come in, if the client is somewhat tired of
hearing from you and having them assess to
avoid a trial what it looks like and have
them speak to the client as well. And [the
Court] has approved that every time it’s
been asked, and that’s part of what we have
here as a resource.
Hr'g Tr. 12, 15, May 6, 2011.
The Court has the greatest respect for Mr. Purpura and for
his opinions.
Mr. Purpura is reputed to be, and in the opinion
of the Court is, at the highest level of the Baltimore criminal
defense bar, particularly in matters such as those involved in
the instant case.
Moreover, the Court is fully satisfied that,
had Mr. Purpura been defense counsel for Movant, he would have
devoted more time and effort than Trial Counsel to seeking to
obtain Movant's agreement to the proffered plea agreements.
Thus, Mr. Purpura would have made an affirmative recommendation
that the offers be accepted and would have made efforts to
convince Movant to accept the plea.
Mr. Purpura may well have
sought the appointment of another attorney to provide a second
opinion to Movant and may well have sought to obtain input from
28
persons in whom Movant had confidence to provide affirmative
recommendations.
However, the issue before the Court, and ultimately before
the United States Court of Appeals for the Fourth Circuit upon
appeal, is not what the best possible defense counsel could have
done.
Rather, the question is what a post-conviction court must
require of a defense counsel when presented with a proffered
plea agreement, particularly in light of Frye and Lafler.
In light of Frye, it appears well established that a
criminal defense lawyer presented with a plea agreement must
make the client aware of the offer.
See 132 S. Ct. at 1408-09.
Trial Counsel did so.
In light of Lafler, it appears that a criminal defense
lawyer presented with a plea agreement must not provide advice
to reject the offer based upon manifestly erroneous advice that
the defendant will not be convicted if he proceeds to trial.
See 132 S. Ct. at 1384.
Trial Counsel did not advise Movant to
reject the plea offers.
Nor did Trial Counsel provide erroneous
relied upon advice that Movant faced no more than a ten year
sentence if he proceeded to trial.
Trial Counsel did not affirmatively advise Movant to accept
either plea offer.
Even if Trial Counsel stated, as he
testified, that they were "good" offers, he expressly told
29
Movant that the decision was the client's.
Trial Counsel did
not make an affirmative recommendation to accept the offers and
did not take steps to persuade Movant to do so.
The Court has not found, or been advised of, precedent
articulating a standard for determining when a criminal defense
attorney, to be effective, must make an affirmative
recommendation of acceptance of a plea agreement and must take
such affirmative steps as may be needed to persuade the client
to plead guilty.
Of course, Movant should ask the appellate court to set
such a standard and, if appropriate, remand the instant case for
necessary findings.
However, in considering the matter, the
appellate court should consider the extent to which, to
paraphrase Justice Kennedy's statement in Frye, it would be
prudent or practicable to try to elaborate or define detailed
standards for the proper discharge of defense counsel's actions
upon receipt of a plea offer beyond the requirement of
communication to the client and avoiding providing manifestly
erroneous advice.
See 132 S. Ct. at 1408.
A standard that would require an affirmative recommendation
of acceptance of a plea offer would require a post-conviction
court to examine the actions of defense counsel in the
particular context in which the offer was made.
30
This would
include, but not be limited to, evaluating the perceived
probability of acquittal on some or all charges,10 comparing the
relative sentencing exposure, balancing the probability of
having the recommendation accepted against the adverse effect on
the attorney/client relationship of unsuccessful persuasive
efforts and, ultimately, deciding whether such persuasive
efforts that could be successful11 would cause a resultant guilty
plea to be vulnerable to attack as involuntary.12
In the instant case, Trial Counsel had a client who
steadfastly professed his innocence of all charges.13
Trial
Counsel made the professional judgment that an affirmative
recommendation was not appropriate but, rather, that it was
10
In light of the circumstances existing at the time of the
plea agreement offer, including what defense counsel knew and
should have known about the case that would be tried.
11
Thus, a post-conviction court would have to consider
whether there should have been a request for an independent
second opinion counsel, participation by family members or other
advisors, persuasive (but short of coercive) statements from
counsel, etc.
12
"A guilty plea is not voluntary and must be stricken if
that free will is overborne by the prosecutor or by the
accused's lawyer." Edwards v. Garrison, 529 F.2d 1275, 1380 (4th
Cir. 1975). (Emphasis added). Thus, a plea could be held
involuntary if counsel's persuasive efforts were found to amount
to a threat to withdraw if the defendant continued to refuse to
plead guilty, Iaea v. Sunn, 800 F. 2d 861 (9th Cir. 1986) or to
constitute telling the defendant "that he has no choice, he must
plead guilty." United States v. Carr, 80 F. 3d 413, 416 (10th
Cir. 1996).
13
The Court will assume that if Movant had been persuaded to
plead guilty, the "innocence problem" would have been overcome.
31
preferable to have the prosecutors summarize the evidence.
Moreover, the Court finds that, in the instant case, Movant
would not have accepted either plea offer had Trial Counsel
simply recommended acceptance.
Much more would have been
necessary to persuade Movant to plead guilty.
Of course, the Court cannot definitively state the
circumstances in which a defense counsel would be held
ineffective for a failure to advise and persuade a client to
plead guilty.
However, the Court concludes that the instant
case does not present such a circumstance.
In sum, the Court does not find that Movant has established
that Trial Counsel provided ineffective assistance in regard to
the plea agreements at issue.
C.
Postponement of Sentencing
In the instant motion, current counsel states:
Trial counsel was ineffective for failing
keep abreast of pending litigation relating
to the binding nature of the now advisory
Federal Sentencing Guidelines and failing to
move to postpone [Movant's] resentencing.
Mot. ¶ 12.b.
The United States Court of Appeals for the Fourth Circuit
issued its decision affirming Movant's conviction and remanded
the case for resentencing on November 17, 2003.
32
The appellate
court issued its Judgment on December 11, 2003.
The Court
resentenced Movant on March 12, 2004.
Movant contends that Resentencing Counsel should have been
aware of the pendency of Blakely v. Washington, 542 U.S. 296
(2004) (argued March 24, 2004) and should have sought to defer
the resentencing until the case was decided.14
Had he done so,
Movant contends, the Court would have been able to apply Blakely
and impose a sentence less than 480 months.
At argument on the instant motion, Government counsel
argued that even if Blakely were applicable, it would not affect
the sentencing of Movant since the jury (not the judge) had
found the quantity of drugs involved.
Movant countered by
contending that Blakely was the predecessor to United States v.
Booker, 543 U.S. 220 (2005), which was argued October 4, 2004
and decided January 12, 2005.15
Presumably, the current
contention is that even if Blakely did not help Movant, Booker,
14
The Supreme Court, in Apprendi v. New Jersey, 530 U.S. 466,
490 (2000), had held that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Blakely held that
the "statutory maximum" sentence, for purposes of Apprendi, "is
the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the
defendant." 542 U.S. at 303 (emphasis in original).
15
Booker held that the Federal Sentencing Guidelines must be
"merely advisory," rather than mandatory, in order to avoid
violating the Sixth Amendment. 543 U.S. at 233, 268.
33
would have so that resentencing should have been delayed from
March, 2004 until the Supreme Court 2004–2005 term.
The Court must note that it typically will agree to defer a
sentencing (or other proceeding) if there were a pending
appellate case that could resolve a significant issue presented
in the near future.16.
Indeed, in the instant case, the Court
deferred the instant decision so that it would have the benefit
of the decisions in Frye and Lafler.
However, awaiting Blakely
and/or Booker would have been useless.
On March 12, 2004, the Court was not sentencing Movant.
It
was resentencing Movant in compliance with a binding Order of
the United States Court of Appeals for the Fourth Circuit.
The
Court had no ability to impose any sentence other than 480
months.
Accordingly, no purpose would have been served from a
deferral of the resentencing.
16
As would have been the situation with Blakely, since a June
decision would have been anticipated.
34
IV.
CONCLUSION
For the foregoing reasons, Petitioner's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody entitled "Motion" [Document 530]
amending the pro se Motion for 2255 Relief [Document 503] is
DENIED.
SO ORDERED, on Thursday, July 5, 2012.
/s/__________
Marvin J. Garbis
United States District Judge
35
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