Ross v. Wolfe et al
Filing
18
MEMORANDUM. Signed by Judge James K. Bredar on 6/1/12. (jmk, Deputy Clerk)(c/m 6/4/12)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JAMES ALAN ROSS #321-218
Petitioner
:
v.
:
WARDEN JOHN S. WOLFE, et al.,
Respondents
CIVIL ACTION NO. JKB-11-1672
:
MEMORANDUM
James Alan Ross pro se filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on June 17, 2011, challenging his convictions in the Circuit Court of Charles County,
Maryland. ECF No. 1. Respondents have responded (ECF No. 9), and Ross has filed a reply as
supplemented (ECF Nos. 11 and 15) and a request for evidentiary hearing (ECF No. 16). Ross
has also filed a motion for appointment of counsel. (ECF No. 17.) After reviewing these papers,
the court shall deny the request for evidentiary hearing and deny the petition as to the claim of
breached plea agreement. As to the two remaining claims—ineffective assistance of counsel and
voluntariness of the plea—the Court concludes the interests of justice require appointment of
counsel under 18 U.S.C. § 3006A(a)(2)(B) and 28 U.S.C. § 2254(h). Appointed counsel shall be
provided a copy of this memorandum and accompanying order and shall, within 60 days hereof,
submit a brief addressing these two issues:
1. Ineffective assistance of counsel during plea negotiations (but only regarding the issue of
counsel’s materially misleading his client about the state’s attorney’s expectation as to
the likely sentence and its execution) and whether that prejudiced Ross; no other issue on
ineffectiveness shall be briefed as the Court finds only this one contention to be viable.
2. Involuntariness of the plea due to Ross’s reliance upon his counsel’s misleading advice.
Procedural History and Background
Ross was charged with five counts of attempted first-degree murder, five counts of
first-degree assault, five counts of second-degree assault, and one weapons offense. ECF No. 9,
Exhibit 1. On April 7, 2004, Ross appeared before the Honorable Amy J. Bragunier to enter an
Alford1 plea to four counts of first-degree assault.2 Id., Exhibit 2 at 2-5. The plea agreement,
memorialized in a written document signed that day by Ross, defense counsel, the assistant
state’s attorney, and the judge, provided that in exchange for the plea, the court agreed to
“recommend defendant be based at the Patuxent Institution.
Otherwise the Court has full
discretion.” Id., Exhibit 3. During the plea colloquy, the judge also indicated that at “sentencing
the Court would have [sentencing] discretion except that the recommendation and [sic] I will
agree to bind myself that I will recommend that the defendant, Mr. Ross, be housed at the
Patuxent Institute.” Id., Exhibit 2 at 5-6. Upon judicial inquiry, Ross acknowledged that he had
reviewed the charges and discussed the case with his attorney, Richard Gummere. Id. at 7, 13.
Ross affirmed that he understood that each of the four offenses to which he was entering a plea
carried a maximum sentence of 25 years in prison and that the court could order each sentence to
be served consecutive to the other, which made the total possible sentence in his case 100 years
in prison. Id. at 7-8. Ross also acknowledged that, as a result of entering a plea, he would give
up his right to contest the charges on grounds such as self-defense, voluntary intoxication, or
insanity. Id. at 11-12. Ross confirmed on the record that he was satisfied with trial counsel’s
performance. Id. at 14. Ross acknowledged a second time that, pursuant to the terms of the plea
agreement, he could be sentenced to serve “100 years in jail.” Id. When the court advised Ross
that he could have a trial if he wanted one, Ross declined, stating: “I think this will be the more
simpler [sic] for everybody involved. Everybody suffered enough in this, including myself.” Id.
at 15.
1
2
North Carolina v. Alford, 400 U.S. 25 (1970).
The remaining twelve counts against Ross were nolle prossed. Id., Exhibit 2 at 13.
2
Following the plea colloquy, the State recited into the record the facts supporting the
plea:
Your Honor, had this matter been a trial the general gist of what the evidence
would be is that back on May 14th, 2003, the defendant before you today, Mr.
Ross, went to the Holly Lane area of Charles County, Maryland of Waldorf in
Charles County, Maryland.
He went there with a man named Gorham Levi and they went to go visit a man
named Timmy Deboard, who lived at 11685 Holly Lane at the time and they
asked Mr. Deboard if he wanted to go fishing with them. There was conversation
between Mr. Ross and Mr. Deboard and the conversation turned into an argument.
I know accounts differ as to exactly what happened between Mr. Ross and Mr.
Deboard. Mr. Deboard’s report is that Mr. Ross, the defendant, during the
argument pulled out a knife and swung at him. Mr. Ross’ account of what
happened is different. Larry Matthews attempted to intervene and he was cut by
the defendant.
Again, Mr. Ross’ account would be different than Mr. Matthews. Mr. Matthews
would say that the defendant approached him with a knife and cut him.
Ultimately Mr. Matthews was cut.
Court’s indulgence.
Mr. Matthews ended up with a lacerated liver and was also stabbed in his face.
The defendant left the residence of 11685 Holly Lane and some people were
across the street a Ms. Frances Ford, who lives in the neighborhood, as well as
George Williams, his wife, Mable, and their grandchildren, across from Holly
Lane and they would testify that they heard a commotion across the way. They
see the defendant come out of the house and the defendant comes out and tears
off his shirt appears to have what appear[s] to be a knife in his hand. He starts
screaming things like I am going to kill you, you are going to see me on the news
and other words to that effect.
And somebody else made a report that he was God or made some reference to
God. In any event, he charges up to them and as they try to flee and try to get
inside the defendant ends up striking Mr. Williams first, strikes him in the chin
with a knife, the blade penetrates the base of Mr. Williams’ chin and then strikes
him in the right eye with the knife.
Ms. Frances Ford turns to flee and he stabbed her at first in the back while she is
at one point down on the ground he then strikes her with a stick object, either a
bamboo rod or some other stick that was in the ground and also with a flower pot.
3
Ironically enough Ms. Ford has lost hearing in that ear she said as a result of the
attack from the object. It is ironic because Mr. Ross is talking about his loss of
hearing.
There was also Sammy Lewis who was present at the time he was stabbed in the
upper right arm by the defendant. Mr. Lewis suffers from Alzheimers and has no
present recollection of what occurred although other people did see him attack
Mr. Lewis.
All of the witness[es] who saw that would say that they, no actions certainly by
Ms. Ford, Mr. Williams and Mr. Lewis were in any way that they had any acts
directed at Mr. Ross, they didn’t threaten him, they didn’t have any weapons in
their hand[s] and Mr. Ross in fact attacked them.
The police were called and in fact Sergeant Ondrish arrives in time to see Mr.
Ross standing over Ms. Ford, beat her with a flower pot. He tries to get him to
come off her, the defendant has a knife and turned the knife and ultimately several
officers respond and the defendant fights with the officers, engaged in offensive
contact with one of the officers as he is trying to get him in the police car.
Detectives respond, officers respond, crime scene responds and the knife is
recovered that he used and they recovered the knife that was used.
They recover other items [of] clothing and the State would have submitted
medical reports showing the injuries from the people as well as testimony from
the witnesses and for purposes of the plea that is some of the evidence that we
would have presented.
Id. at 18-22. The court found that the facts supported the plea as to four counts of first-degree
assault, found Ross’s plea to be entered knowingly and voluntarily, and accepted the plea. Id. at
23-24, 26.
At his June 8, 2004, sentencing hearing, Ross explained that the violent episode was
fueled by a history of drug use, including PCP that he had smoked earlier that day. Id., Exhibit 4
at 15-20. The court was not sympathetic. Ross was sentenced to an aggregate of 70 years’
imprisonment and his postjudgment and appellate rights were explained to him on the record.
Id., Exhibit 4 at 22-24. Despite judicial recommendation, he was not accepted for treatment at
Patuxent Institution and is serving his sentence within Maryland’s Division of Correction. On
4
June 10 and June 28, 2004, Ross filed motions for reconsideration of sentence that were not ruled
upon by the court. Id., Exhibit 1. On June 29, 2004, Ross filed an application for review of
sentence by a three-judge panel that was denied on September 30, 2004. Id. On July 1, 2004,
Ross filed an application for leave to appeal the entry of his plea, which, as supplemented,
questioned (1) whether the trial court erred in accepting his guilty plea where the record shows
that a competency evaluation was not done, (2) whether the trial court erred in accepting the
guilty plea before determining that the plea was entered with a knowledge of the nature of the
offenses, and (3) whether the trial court erred in sentencing Ross on a count that was not part of
the plea. Id., Exhibits 5-6. On December 20, 2005, the Court of Special Appeals of Maryland in
an unreported opinion remanded the case to the circuit court for correction of the docket entries
and commitment record. Id., Exhibit 7. Upon reconsideration, the intermediate appellate court
recalled its opinion and, on March 5, 2008, issued an unreported opinion granting the same relief
as the earlier opinion and denying the remaining claims.3 Id., Exhibits 8-9.
On November 17, 2008, Ross filed a petition for state postconviction relief in the Circuit
Court for Charles County. In his petition as supplemented, Ross alleged that (A) the trial court
erred in accepting the guilty plea (1) without conducting a competency evaluation and
(2) without determining that Ross understood the nature of the offenses; (B) the State breached
the plea agreement by recommending a 100-year sentence; and (C) trial counsel was ineffective
based on (1) a conflict of interest, (2) failure to obtain an evaluation of Ross’s mental health at
the time of the assaults, (3) advice to Ross that he would serve only ten years in prison,
3
Respondents indicate the court’s mandate issued on April 7, 2008. Ross did not seek further review in the United
States Supreme Court, see Paper No. 1 at 3. Thus, his judgment became final for direct review purposes on
Monday, July 7, 2008, when the time for doing so expired.
5
(4) failure to object to improper prosecutorial allocution, and (5) failure to assure that Ross’s plea
was entered knowingly and voluntarily. Id., Exhibits 10-13.
At the postconviction hearing, testimony was given by Ross, Ross’s sister, Ross’s son,
the trial prosecutor, and trial defense counsel.4 Id., Exhibit 12. In a memorandum opinion and
order filed on May 28, 2009, the Circuit Court denied post-conviction relief. Id., Exhibit 13. In
his application for leave to appeal the postconviction court’s decision, Ross alleged that (A) the
postconviction court improperly denied his motion to withdraw his petition; (B) the state
breached the plea agreement by recommending a 100-year sentence; (C) trial counsel was
ineffective for advising Ross that he would only serve ten years in prison; and (D) Ross’s guilty
plea was not knowing and voluntary. Id., Exhibit 14. The application for leave to appeal was
summarily denied by the Court of Special Appeals of Maryland in an unreported opinion filed on
August 19, 2010.5
In his § 2254 petition, Ross challenges his plea and sentences on three separate grounds:
(1) the state breached the plea agreement by recommending a 100-year sentence; (2) trial counsel
was ineffective for advising Ross that he would serve only ten years in prison if he pled guilty;
and (3) the guilty plea was not knowing and voluntary.
4
Ross requests an evidentiary hearing to provide testimony from his mother, Ms. Mary A. Howland. The court
notes that Ross submitted an April 3, 2004, letter from his mother as Exhibit 3, appended to his petition (ECF No. 1
at 35). The letter supports the testimony presented at postconviction by Ross, his sister, and his son that counsel told
family members that a plea agreement would result in a sentence of less than ten years, a portion of which would be
served at Patuxent. Ms. Howland indicates that counsel told her that Ross could receive a forty-year sentence. She
also indicated that counsel had interviewed one prosecution witness, the “elderly woman,” who cried, and that “if
you went to trial and they put her on the witness stand, it wouldn’t help.” The letter includes advice that “[i]f you
choose to go with him [defense counsel] I would try to pin him down to the exact number.” Id. Ms. Howland’s
testimony at best would be cumulative to that already provided in the postconviction hearing. Under Rules 7 and 8
of the Rules Governing Habeas Corpus Cases, there is no apparent need to convene an evidentiary hearing to obtain
additional testimony from this witness.
5
A motion to reconsider was subsequently denied and the intermediate appellate court issued its mandate on
January 5, 2011. Id., Exhibit 15.
6
Standard for the Writ of Habeas Corpus
The federal habeas statute, 28 U.S.C. § 2254, as amended, provides a “highly deferential
standard for evaluating state-court rulings,” Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see
also Bell v. Cone, 543 U.S. 447 (2005). This “highly deferential” standard is “difficult to meet”
and “demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster,
563 U.S. __, ___, 131 S. Ct. 1388, 1398 (2011); see also Harrington v. Richter, 562 U.S. __, __,
131 S. Ct. 770, 786 (2011) (“If this standard is difficult to meet, that is because it was meant to
be.”). Petitioner carries the burden of proof to meet this standard. See Pinholster, 131 S. Ct. at
1398.
Section 2254 provides:
d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
See 28 U.S.C. § 2254(d)(1) and (2) (amendments enacted as part of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA)).
“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by this Court on a question of law or if the
state court decides a case differently than this Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000) (O’Connor, J., concurring). “Under the
‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court
7
identifies the correct governing legal principle from this Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.” Id. The AEDPA amendments to 28
U.S.C. § 2254 require this Court to limit its analysis to the law as it was “clearly established” by
precedent at the time of the state court's decision.6 Pinholster, 131 S. Ct. at 1399.
The “unreasonable application” prong of § 2254(d)(1) permits a federal habeas court to
“grant the writ if the state court identifies the correct governing legal principle from this Court’s
decisions but unreasonably applies that principle to the facts” of petitioner’s case. Williams, 529
U.S. at 413 (O’Connor, J., concurring); see also Cone, 535 U.S. at 694. In other words, a federal
court may grant relief when a state court has misapplied a “governing legal principle” to “a set of
facts different from those of the case in which the principle was announced.” Lockyer v.
Andrade, 538 U.S. 63, 76 (2003) (citing Williams, 529 U.S. at 407). To be “unreasonable,” the
state court’s application of Supreme Court precedent must have been more than incorrect or
erroneous.
See Andrade, 538 U.S. at 75.
The state court’s application must have been
“objectively unreasonable.” See Williams, 529 U.S. at 409, see also Wiggins v. Smith, 539 U.S.
510, 520-21 (2003).
That high standard cannot be met by Petitioner with regard to his claim of breach of the
plea agreement. However, the remaining two claims merit further discussion.
6
The Supreme Court recently examined whether counsel was ineffective in failing to communicate a prosecutor’s
written plea offers prior to their expiration, where the defendant subsequently incurred another arrest just before
pleading guilty to the original charge without an underlying plea agreement and received a sentence substantially
greater than that contemplated in the written plea offer. See Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (March
21, 2012). The Frye decision is inapplicable to the facts of this case and in any event would not constitute “clearly
established” precedent at the time the state post-conviction decision was rendered.
8
Analysis
A. Breach of the Plea Agreement
Ross first alleges that the state breached the plea agreement by requesting a maximum
sentence of 100 years of incarceration. ECF No. 1 at 16-20. The state postconviction court
found no evidence to support this claim:
The plea/sentence agreement document, dated April 7, 2004, signed by Jerome
Spencer, Richard Gummere, James A. Ross, and Judge Amy Bragunier, states that
“Defendant will plead guilty to four counts of first degree assault (Counts 6, 7, 8,
9), pursuant to Alford v. North Carolina. State will dismiss other charges. Court
will recommend defendant be housed at the Patuxent Institute. Otherwise, the
court has full discretion. There is no other sentencing limitation except that
provided by law.” A space allowed on the form for memorializing “other
agreement(s)” is left blank.
Criminal Law Section 3-202(b) authorizes a maximum penalty of 25 years
imprisonment for first degree assault. 4 times 25 = 100. The prosecutor did not
violate the agreement just described by making a 100-year sentence
recommendation (which, in any event, the Court did not follow). Moreover,
Petitioner specifically acknowledged to Judge Bragunier that he understood that
the plea/sentence agreement would permit her to sentence him to 100 years’
incarceration. (Transcript page 7, line 20 ff.) I have seen no evidence of violation
of the agreement.
ECF No. 9, Exhibit 13 at 4.
This ruling of the postconviction court is supported in the record; nothing in the plea
agreement signed by the prosecutor limited the state’s attorney from recommending a 100-year
sentence.
ECF No. 9, Exhibits 2-3.
In fact, the trial judge clearly articulated, and Ross
acknowledged, that the maximum sentence pursuant to the terms of the plea agreement was 100
years in prison and the judge reserved full discretion over sentencing but would recommend
Ross’s placement at Patuxent Institution.
See id.
The state’s representations at time of
sentencing were fully consistent with the terms of the plea agreement. Exhibit 13 at 4. Thus, the
9
denial of postconviction relief on this ground constitutes a reasonable application of the law and
will be upheld under 28 U.S.C. § 2254(d).
B. Ineffective Assistance of Counsel
The two-part test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984),
governs the standard for examining ineffective assistance claims.
First, a petitioner must
demonstrate that the performance of his counsel was deficient by falling below an objective
standard of reasonableness. Id. Second, a petitioner must demonstrate that he suffered prejudice
as a result of the defective performance. Id. The Strickland standard applies equally to matters
resolved by way of plea bargaining; to obtain relief from his guilty plea based on ineffective
assistance, Ross must show that (1) counsel was incompetent and that (2) he would not have
pleaded guilty but for counsel’s incompetence. See Hill v. Lockhart, 474 U.S. 52, 58 (1985);
Fields v. Attorney General of Maryland, 956 F.2d 1290, 1297 (4th Cir. 1992).
The Supreme Court has made it clear that courts should “indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the challenged
action might be considered a sound trial strategy.” Strickland, 466 U.S. at 689. Further, in the
context of a § 2254 proceeding, it is not sufficient to convince the federal habeas court that the
state court merely applied Strickland incorrectly. Rather, a petitioner must show that the state
court applied Strickland to the facts in an objectively unreasonable manner. See Cone, 535 U.S.
at 698-99.
The first prong of the Strickland test requires an evaluation of counsel’s performance in
light of an “objective standard of ‘reasonably effective assistance’ under ‘prevailing professional
norms.’” Briley v. Bass, 750 F.2d 1238, 1247 (4th Cir. 1984). The American Bar Association’s
10
standards, recognized by the Supreme Court as “guides to determining what is reasonable,”
Strickland, 466 U.S. at 688, provide the following guidelines concerning the proper relationship
between defense counsel and client in the plea agreement context:
(a) Defense counsel should conclude a plea agreement only with the consent of the
defendant, and should ensure that the decision whether to enter a plea of guilty or
nolo contendere is ultimately made by the defendant.
(b) To aid the defendant in reaching a decision, defense counsel, after appropriate
investigation, should advise the client of the alternatives available and of
considerations deemed important by defense counsel or the defendant in reaching a
decision.
Id.
Likewise, Rule 1.4 of the Maryland Rules of Professional Conduct requires defense
counsel to communicate the terms of all plea offers made. Federal courts have been unanimous
in finding that where defense counsel has failed to inform a defendant of a plea offer, or where
defense counsel’s incompetence results in a defendant’s deciding to go to trial rather than
pleading guilty, such conduct constitutes a violation of a defendant’s Sixth Amendment right to
the effective assistance of counsel. See, e.g., Johnson v. Duckworth, 793 F.2d 898, 900-02 (7th
Cir. 1986) (defense counsel should keep defendant apprised of all developments in plea
negotiation process and communicate prosecutor’s proposals promptly); United States v.
Blaylock, 20 F.3d 1458, 1465-66 (9th Cir. 1994) (failing to inform defendant of plea offer was
unreasonable assistance); United States v. Leonti, 326 F.3d 1111, 1117 (9th Cir. 2003) (failure to
advise client to enter plea bargain when it is in client’s best interest constitutes ineffective
assistance of counsel); United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir. 1982)
(failure to communicate plea bargain offer to defendant denied defendant his Sixth and
Fourteenth Amendment rights to effective assistance of counsel). The Supreme Court recently
confirmed that counsel’s failure to communicate a plea offer may constitute a Sixth Amendment
11
violation, but only if the second prong under Strickland is met.7
The second prong under Strickland requires Ross to show “a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to
trial.”8 Hill, 474 U.S. at 59. To be constitutionally valid, a guilty plea must represent a
voluntary and intelligent choice among the alternative courses of action open to the defendant.
See Alford, 400 U.S. at 31. To apply this standard, the court must look to the totality of the
circumstances surrounding the guilty plea. See Brady v. United States, 397 U.S. 742, 749 (1970)
(defendant’s solemn declaration of guilt presumed truthful in absence of impeaching evidence).
The Constitution requires the circumstances to reflect that the defendant was informed of all
direct consequences of his plea.
Brady, 397 U.S. at 755.
The plea may be considered
involuntary if the defendant does not understand the nature of the constitutional rights he is
waiving or unintelligent if the defendant does not understand the charges against him. See
Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1975).
Prior to trial, Ross’s attorney drafted two “Memoranda of Understanding” (“MOU”)
concerning the possible sentence and likely plea position for the charges Ross faced. The first
MOU, unsigned and undated, indicated that Ross faced five charges of attempted murder, each
7
See Missouri v. Frye, supra.
8
Further, where counsel substantially misinforms his client as to the maximum possible sentence, a guilty plea
cannot stand. See Manley v. United States, 588 F.2d 79, 81-82 (4th Cir. 1978); Hammond v. United States, 528 F.2d
15, 18 (4th Cir. 1975) (citing with approval Cooks v. United States, 461 F.2d 530 (5th Cir. 1972), in which Fifth
Circuit held, where counsel was ineffective in advising client on maximum length of potential sentence, plea was not
voluntary because made without knowledge of factors pertinent to proper determination of whether to plead guilty
or not). Counsel’s bad guess as to what a judge may do, however, does not require vacatur of a sentence. See
United States v. Futeral, 539 F.2d 329, 330-31 (4th Cir. 1975) (“While Futeral had a strong basis for hope that the
court would follow the recommendation, he was not misled in any way”). Ross was properly advised by counsel in
the first Memorandum of Understanding and again by the trial court as to the possible maximum sentences for each
of the counts to which he entered his plea and informed that the sentences could be imposed consecutively. ECF
No. 9, Exhibit 2 at 7-8.
12
of which carried “exposure of life in prison.”9 The MOU noted “[t]he typical disposition for a
case like this is consecutive sentences so that even if the sentence were imposed at twenty (20)
years per crime, there would be an exposure of one hundred (100) years of actual jail time.” The
MOU further noted that Ross also faced charges of first-degree assault, which carried similar
penalties,10 and that Maryland’s sentencing “guidelines range anywhere from nine (9) years to
twenty (20) years per assault, meaning that the guideline would provide for between forty-five
(45) years and one hundred (100) years of incarceration.” The MOU indicated “a tentative
agreement with the prosecutor that any plea agreement would involve a mandatory
recommendation by the Judge for treatment at the Patuxent Institution” and further noted that
Patuxent “would receive Mr. Ross probably three (3) years after his confinement at [the Division
of Correction]” and “would hold Mr. Ross until it was felt that he was safe to resume life in the
community,” which “could be several years.” The document concluded with a statement that
“[i]t is likely that Mr. Ross would be free in less than ten (10) years from the date of his original
arrest should he be treated at the Patuxent Institute and should the Court recommend it as is the
present understanding.” ECF No. 9, Exhibit 10 at Exhibit D. Nothing in the MOU suggests that
Ross would in fact be guaranteed admission to Patuxent.11
Under the terms of the second MOU, signed solely by Ross and dated two days prior to
9
Under Maryland law, attempt to commit murder in the first degree carries a potential life sentence. Md. Code
Ann., Crim. Law § 2-205. A sentence of up to thirty years may be imposed upon conviction of attempt to commit
murder in the second degree. Id., § 2-206.
10
This premise is incorrect; under Maryland law, assault in the first degree carries a sentence not to exceed 25
years’ incarceration. Md. Code Ann., Crim. Law § 3-202. This miscalculation did not result in actual prejudice to
Ross under Manley, as Ross pleaded guilty to four counts of first-degree assault and the maximum possible sentence
under law was in fact 100 years as contemplated in the MOU.
11
The record does not offer clear information on precisely how the Patuxent Institution program works. The
governing statutes do indicate, though, that Patuxent’s emphasis is on remediation rather than incarceration and that
Patuxent and its Board of Review enjoy some autonomy in terms of accepting inmates, designing program services,
and determining when and under what conditions inmates may be released back into society. Md. Code Ann., Corr.
Servs. § 4-401 et seq. (LexisNexis 2008).
13
his plea hearing, Ross (1) agreed to enter an Alford plea to four counts of first-degree assault
without a “cap” on sentence, based on the belief that a “cap” might be less beneficial than a
sentence imposed within the sentencing guidelines; (2) noted an understanding between defense
counsel and the state’s attorney that the trial judge would make a binding recommendation for
treatment at Patuxent; and (3) indicated that Ross would be in prison “for several years” and that
based on the Judge’s treatment recommendation he would “be dealt with at…Patuxent…[and]
transferred under the Department of Corrections to that facility after several years in the
penitentiary” where Ross “expect[ed] to [remain] in…Patuxent…for several years.” Finally, the
MOU memorialized that Ross’s “attorney and the State’s Attorney, according to my attorney,
believe that I will be in the Maryland prison system, both Patuxent and conventional prison, for
a period of somewhat less than ten years. Neither [Ross’s] attorney nor the State’s Attorney nor
I have complete knowledge of the way in which my referral to…Patuxent…will be handled.” Id.,
Exhibit 10 at Exhibit E (emphasis added).
At postconviction, trial counsel testified that a “cap” was discussed and not offered by the
prosecution, but a “flat out forty years was.” Both counsel and Ross felt this was unreasonable
and that reliance on the guidelines might provide a lesser sentence.12 Id., Exhibit 12 at 12, 16-18.
Counsel admitted that he wrote the final paragraph in the second MOU “based on [his] fair
expectations of the kind of sentence [Ross] would eventually serve in terms of active time” and
that Ross “was going to get a very favorable sentence by comparison to what he got.” Id. at 21.
Counsel admitted, however, that by stating that the state’s attorney believed that Ross would
serve less than ten years, he was “going overboard in trying to tell Mr. Ross what I saw going
on” and that the state’s attorney “never made an agreement with regard to the ten years. I was
12
Despite reference to the guidelines, it appears there was no effort on the part of trial counsel and the state’s
attorney to influence the trial court to sentence within the guidelines. Id., Exhibit 12 at 20.
14
hoping that his understanding of the sentence and his understanding of what would happen to
Mr. Ross after he were incarcerated was consistent with that.” Counsel also agreed that the
MOU “absolutely” might lead Ross to believe he would only serve ten years. Id. at 22.
Ross testified that he believed the April 5 MOU that he signed was the actual plea
agreement reduced to show four counts of first-degree assault, and that counsel told him “this is
how it’s going to be and…you should take [it,] Jim.” Id., Exhibit 12 at 104-05. Ross also
testified that he did not want to admit guilt because he was not “guilty as charged because of the
condition of my mind at the time.” Id. at 105-06. He admitted, however, that “[b]y pleading
guilty I thought I was…limiting myself…to the guilty plea agreement that we had” and limiting
his exposure to “less time than a hundred years.” Id. at 107. Ross further testified he believed
that despite significant exposure, he would be sentenced to less than ten years and the fact that
the state’s attorney was referenced in the MOU indicated the state was “on board” with the
foreshortened sentence. Id. at 108-10. Ross emphatically stated that had he known he would be
facing up to 100 years’ incarceration, he would “have went [sic] to trial and took my chances
because they [the state’s attorney and trial judge] hadn’t even, I plead guilty, I laid myself in
front of these people but they didn’t get to hear what really happened to me…” Id. at 112.
During the hearing, the postconviction court examined the actual plea agreement signed
on April 7, 2004,13 by the trial judge, Ross, defense counsel, and the state’s attorney prior to the
plea colloquy. ECF No. 9, Exhibit 12 at 121-22. When questioned, Ross testified that he signed
the agreement, which indicated it was the sole agreement among the parties and provided “no
other sentencing limitations except as provided by law,” because he “honestly thought that was
what my lawyer had worked out with the Court for my end results” and because he “was coached
13
A copy of the actual agreement signed by the parties is found at ECF No. 9, Exhibit C, attached to Exhibit 6.
15
by [trial counsel as to what] to say and do.” Id., 122-25.
The postconviction court rejected Ross’s claim that counsel misled him into believing he
would receive a maximum sentence of no more than ten years if he entered a plea:
Petitioner’s son James, Jr. testified that Mr. Gummere has assured him that the
plea and sentence agreement which had been achieved for his father represented
“a pretty good deal.” He said that Gummere predicted that in such a scenario
Ross, Sr. would likely serve no more than 8 to 10 years and that although he, the
son, thought 8 to 10 years was “a lot,” he had encouraged his dad to take the deal
on Gummere’s recommendation.
Petitioner testified that Gummere had urged that he accept the plea arrangement
reflected in the memorandum previously described since a trial at which credible
witnesses described the incident would render him susceptible to multiple life
sentences. Petitioner professed to be unfamiliar with sentencing guidelines but
admitted having seen a document drafted by Gummere (Petitioner’s April 23
Exhibit 3) speculating that a guideline range from 45 to 100 years might apply to
his situation. For reasons not apparent to me at the sentencing event, at the April
23 post-conviction hearing and at Petitioner’s post-sentencing discussions with
Mr. Gummere and with jailhouse sentencing veterans argument and comment
occurred regarding appropriate guidelines calculation, but categorically no
evidence has been presented to suggest, much less demonstrate, that Ross’
decision to plead as he did was in any way affected by allusion to sentencing
guidelines or that the Court was bound in any way to utilize the guidelines,
however calculated. Rather, Petitioner’s April 23 Exhibit 4, a memorandum of
understanding signed by Ross on April 5, 2004, appears to have outlined his
motivation for entering the pleas and understanding of the context in which he
was acting. The document does make reference to guidelines when discussing
Ross’ decision not to ask the Court to agree to a limitation on active incarceration,
declaring that he anticipates (somehow) “the guidelines” may be “more
beneficial” than a preset cap, but neither it nor any other evidence reflects an
understanding or an expectation that guidelines would affect the ultimate
sentence.
The April 5 document does confirm Ross’ statement that he was led to believe that
the plea and sentencing would result in incarceration for something less than 10
years. It is clear to me from reviewing Petitioner’s Exhibits 3 and 4 that the basis
for such speculation was the guarantee of a referral to Patuxent and a
qualification, set out in Exhibit 3, that “[i]t is likely that Mr. Ross would be free in
less than ten (10) years from the date of his original arrest should he be treated at
the Patuxent Institute. . . .” In this body of evidence there is no other basis for
such speculation but there is this one.
16
That said, there is nothing to support Petitioner’s implication that anyone
guaranteed either such a limitation on active incarceration or his acceptance by
Patuxent. In fact the evidence is that all mention of Patuxent was contingent
exemplified by use of the terms of “referral,” “recommendation,” and “should he
be treated.”
...
As discussed above at Item 2, above, the several memoranda and explication with
the judge on the record satisfy me that Petitioner fully understood and
intelligently and voluntarily entered the pleas or that he lied to the judge.
ECF No. 9, Exhibit 13 at 5-7 (emphasis added).
Based on these factual findings, the
postconviction court reached the following conclusion:
Although Ross’ hope of acceptance by Patuxent and the attendant, but
speculative, spect[e]r of less active incarceration were not realized, the evidence
before me fails [to] demonstrate that defense counsel’s services were other than at
or above the level of competence expected. James Alan Ross categorically was
not deprived of effective assistance of counsel in this case.
ECF No. 9, Exhibit 13 at 7.
Nothing suggests that Ross’s counsel failed to communicate that the prosecutor would
not agree to a forty-year cap. The first MOU clearly informed Ross that he faced exposure of up
to 100 years’ incarceration. Nor does the record suggest, based on representations in the first
MOU, that Ross was unaware that, even at the lowest articulated range of the sentencing
guidelines, he likely faced a minimum of nine years’ incarceration for each count of first-degree
assault. It is undisputed that trial counsel and the prosecutor had many discussions concerning a
potential plea agreement, see Paper No. 9, Exhibit 12 at 12, 51, and that both sides agreed the
plea would encompass the trial judge’s binding recommendation that Ross be evaluated for
treatment at Patuxent. Ross also appears to have no quarrel with the terms of the plea wherein
the state agreed to nolle prosse numerous offenses, including five counts of attempted first-
17
degree murder (each of which carried a possible life sentence), in exchange for Ross’s plea to
four counts of first-degree assault.
The troubling aspect of this case centers around the second MOU, signed solely by Ross,
which stated, without qualification, that both trial counsel and the prosecutor believed that after
several years of imprisonment Ross would be admitted to Patuxent based on the trial court’s
recommendation and, upon completion of treatment, returned to the community within ten years.
Trial counsel admits he misled Ross, and that he allowed Ross and Ross’s family to believe the
prosecutor was on board with a sentence of less than ten years, all based on counsel’s “hope” that
a Patuxent placement would lead to the desired result. Counsel admits that he went “overboard”
in his effort to persuade his client to make what he, counsel, clearly thought was the right choice
in the circumstances.
The second MOU’s representation as to the state’s attorney’s expectations was flatly
untrue. Moreover, the record shows that Ross, while not misinformed about the potential,
maximum length of his sentence, did believe his guilty plea would result in less than ten years of
incarceration.14 Indeed, the finding of the postconviction court supports this conclusion. See
ECF No. 9, Exhibit 13 at 5-7 (“The April 5 document does confirm Ross’ statement that he was
14
In Blackledge v. Allison, 431 U.S. 63 (1977), a North Carolina prisoner sought habeas corpus relief on the ground
that his guilty plea was involuntary because of an unkept plea agreement. The United States District Court for the
Middle District of North Carolina summarily denied relief, and petitioner appealed. The United States Court of
Appeals for the Fourth Circuit reversed and remanded, 533 F.2d 894, and certiorari was granted. The Supreme
Court held that federal courts in administering the writ of habeas corpus and its federal postconviction counterpart
cannot fairly adopt a per se rule excluding all possibility that a defendant's representations on the record at time his
guilty plea was accepted were the product of such factors as misunderstanding, duress, or misrepresentation by
others as to make his guilty plea a constitutionally inadequate basis for imprisonment. Because the state record was
undeveloped, the case was remanded for discovery and expansion of the record. The Blackledge Court noted,
however, that “the representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any
findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral
proceedings,” id. at 73-74, and “[s]olemn declarations in open court carry a strong presumption of verity,” id. at 74,
quoted in Tovar Mendoza v. Hatch, 620 F.3d 1261, 1269 (10th Cir. 2010) (evidentiary hearing required where new
evidence suggested trial counsel promised defendant the trial judge with whom counsel had a “special relationship”
agreed to impose a three-year sentence in exchange for a guilty plea to serious felony charges).
18
led to believe that the plea and sentencing would result in incarceration for something less than
10 years”). In hindsight, this belief was clearly erroneous because it was premised upon the
misrepresentation of counsel. But the focus in this habeas corpus case is not on the ultimate
correctness of Ross’s belief but on why he had that belief—counsel’s misleading statement and
thereby ineffective assistance—and whether it affected his decision-making to his prejudice.
Ross, who was in his mid-fifties at the time of sentencing, stated that he would have gone to trial
and taken his chances trying to garner understanding as to what compelled his actions,15 rather
than be sentenced under a plea agreement that essentially amounts to a life sentence.
Ordinarily, a petitioner is not entitled to habeas relief simply on the basis of his
unsupported claim that the plea bargain was misrepresented to him by his attorney, especially
where the record fails to corroborate the claim. See Nichols v. Perini, 818 F.2d 554, 558-59 (6th
Cir. 1987). Here, however, Ross’s postconviction testimony accords with that of trial counsel
Gummere, who indicated that “as soon as I became aware of the nature of the evidence against
[Ross] I became convinced that it was not a try able [sic] case” and that he discussed the need to
enter a guilty plea “ever[y] time I met with him, ever[y] time I spoke with him.” Id. at 11.
Gummere also had frequent ongoing discussions of a possible plea agreement with the
prosecutor, whose best offer was a forty-year sentence rejected by both Gummere and his client.
Id. at 12-13. Counsel testified that he believed “the guidelines would probably max out around
forty years” and that the guidelines document prepared by the Probation Department indicated
the range of eighteen to thirty years, well within the forty-year fixed sentence proposed by the
prosecution. Id. at 17-18. Counsel also wanted his client to understand that he would initially be
incarcerated in a Division of Correction prison but would then be transferred to Patuxent to
15
The court notes that this incident was not the first triggered by Ross’s voluntary use of PCP. See ECF No. 9,
Exhibit 4 at 3-4.
19
spend several years undergoing rehabilitative programming, id. at 20-21, yet counsel himself did
not know—and did not explore—the process and parameters used to determine Patuxent
eligibility. Id. at 27, 33. Furthermore, by his own admission, counsel at sentencing did not
object to the prosecutor’s correction of the guidelines prepared by the Probation Department,
even when the correction increased the sentencing range to a maximum of ninety years. Id. at
24.
The finding of the postconviction court that Ross was misled by counsel about an
obviously material matter is irreconcilable with its conclusion that Ross had effective assistance
of counsel. Under no prevailing norm of professional conduct of which this court is aware is
defense counsel permitted to make an intentional misrepresentation to his client about the
prosecutor’s expectation of a likely sentence in order to induce his client’s guilty plea.
Notwithstanding the findings of the postconviction court, the record leads this court to the
conclusion that counsel’s performance fell below an objective standard of reasonableness.16
Were this court reviewing the actions of defense counsel in the context of a motion to vacate a
federal plea and sentence, the undersigned would find counsel’s representation deficient based
on an outright misrepresentation that led Ross to reasonably rely on the MOUs drafted by his
attorney (neither of which was based on a concrete plea agreement reached with the state). Such
16
To overturn a guilty plea on the basis of ineffective assistance of counsel, a habeas petitioner must establish that
he was induced to plead guilty because of serious misinformation by counsel, such as gross misinformation
concerning parole eligibility, see Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir. 1990) (en banc); Sparks v.
Sowders, 852 F.2d 882, 885 (6th Cir. 1988), abrogated in part by Padilla v. Kentucky, 130 S. Ct. 1473, 1484 (2010)
(standard for evaluating counsel’s advice not limited to affirmative misadvice, as in Sparks, but may also include
acts of omission); but see Hale v. Lockhart, 903 F.2d 545, 549 (8th Cir. 1990) (rejecting claim that guilty plea was
induced by incorrect information from counsel regarding parole eligibility where state court’s finding that principal
reason counsel advised petitioner to plead guilty was to avoid a potential death penalty, a finding supported by the
record); Pashos v. Moore, No. 4:04 CV 428 DDN, 2005 WL 3348935, at *4-5 (E.D. Mo. Dec. 5, 2005) (denying
habeas relief where, even if a contrary finding were reasonable, substantial evidence supported state court findings
that pleas were voluntary and not induced by allegedly incorrect sentencing information from counsel).
20
conclusion, however, may not merit awarding Ross the relief he seeks. As recently stated by the
Supreme Court:
Asking whether the state court’s application of Strickland was unreasonable is
different from asking whether defense counsel’s performance fell below that
standard. Under AEDPA, a state court must be granted a deference and latitude
that are not in operation in a case involving direct review under Strickland. A
state court’s determination that a claim lacks merit precludes federal habeas relief
so long as “fair-minded jurists could disagree” on the correctness of that decision.
See Richter, 131 S. Ct. at 785-87 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).17
Finally, the issue arises whether Ross meets the second prong under Strickland and Hill.
The postconviction record is replete with Ross’s statements that but for counsel’s deception, he
would not have pleaded guilty and would have insisted on going to trial. Counsel testified at the
post-conviction hearing that proceeding to trial was not a viable option given the overwhelming
evidence against his client. Id., Exhibit 12 at 11. Counsel’s opinion was that the entry of a
guilty plea was the best option given the substantial evidence against Ross, previous findings of
mental competency,18 and the strong possibility of multiple life sentences had Ross proceeded to
trial.19 But it is not counsel’s opinion that controls; it was Ross’s decision to make, being fully
informed of the circumstances, and here, counsel has candidly admitted he intentionally misled
Ross out of an apparently paternalistic desire to get Ross to make the choice counsel believed he
should make. Counsel clearly defaulted on his fundamental duty to provide effective assistance
of counsel. Under these circumstances, the Court desires a full discussion by appointed counsel
17
Even a strong case for relief does not mean the state court’s contrary conclusions are unreasonable. Richter, 541
U.S. at 786 (citing Lockyer v. Andrade, 538 U.S. 63 (2003)).
18
Previous counsel had filed a suggestion of incompetency in this case as well as in another pending case, and
evaluation by the Department of Mental Health and Hygiene revealed Ross was competent to stand trial. ECF
No. 9, Exhibit 2 at 2-4.
19
The actual sentence imposed, 70 years, is less severe than multiple life sentences as Ross may earn credits toward
mandatory release, an opportunity not available to those serving multiple life sentences.
21
of the application of governing § 2254 standards to the facts of this case. Any discussion of the
second issue arguably implicates the third issue, the voluntary and knowing nature of the plea.
The parameters of the brief to be filed by appointed counsel are as set forth at the
beginning of this opinion:
1. Ineffective assistance of counsel during plea negotiations (but only regarding the issue of
counsel’s materially misleading his client about the state’s attorney’s expectation as to
the likely sentence and its execution) and whether that prejudiced Ross; no other issue on
ineffectiveness shall be briefed as the Court finds only this one contention to be viable.
2. Involuntariness of the plea due to Ross’s reliance upon his counsel’s misleading advice.
Conclusion
The petition for the writ of habeas corpus will be denied as to the issue of breach of the
plea agreement. A separate order will issue in accord with this opinion.
DATED this 1st day of June, 2012.
BY THE COURT:
/s/
James K. Bredar
United States District Judge
22
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