Wright v. USA-2255

Filing 4

AMENDED MEMORANDUM AND ORDER denying a certificate of appealability. Re: Motion to Vacate (2255) filed by Calvin Wright. Signed by Judge David A. Faber on 10/19/2016. (c/m 10/19/16 bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CALVIN WRIGHT
v.

CIVIL ACTION NO. DAF-12-2374
CRIMINAL NO. 1:08-00381-DAF-2

UNITED STATES OF AMERICA
AMENDED1 MEMORANDUM OPINION AND ORDER
By Judgment Order entered on September 30, 2016, the
court DENIED Wright’s “Motion to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody,” pursuant to 28 U.S.C. §
2255.

(ECF 556).

The reasons for that decision follow.
I.

Background

Calvin Wright was charged in four counts of a five-count
superseding indictment charging him with conspiracy to distribute
heroin and cocaine, in violation of 21 U.S.C. § 846, (Count One);
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii), (Count
Three); being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1), (Count Four); and possession with intent
to distribute heroin, in violation of 21 U.S.C. § 841(a)(1),
(Count Five).

See ECF No. 321.

After a thirteen-day jury trial, Wright was found guilty
on all counts.

See ECF No. 382.

Wright was sentenced to a total

term of imprisonment of 420 months, consisting of 360 months on

1

numbers.

This Order is amended solely to correct the case

Count One, 120 months on Count Four, and 240 months on Count
Five, all of which were to run concurrently, as well as a term of
60 months on Count Three to run consecutively to the other
counts.

See ECF No. 425.
On August 8, 2012, Wright filed the instant motion under

§ 2255, alleging three grounds for relief.

First, Wright

contends that his conviction on the conspiracy count was obtained
in violation of due process of law.

As for his second ground for

relief, Wright claims that his trial counsel was ineffective in
apprising him of the elements of the offense and the resulting
burdens of proof and that this failure on the part of counsel led
him to reject the government’s plea offer.

Finally, Wright

argues that Count One is duplicitous and that the unanimity of
the jury’s verdict is at issue.

Wright concedes that he did not

raise the first or third grounds for relief on direct appeal but
contends that appellate counsel did not follow his instructions
to do so.2
This matter was originally assigned to Judge Ellen Lipton
Hollander who appointed counsel to represent Wright so that an
evidentiary hearing might be held on Count Two.

The government

called into question the existence of the plea offer which Wright

2

With respect to Ground One, Wright contends that
“Appellate Counsel did not follow my instructions. Accordingly,
any failure to raise this issue should be viewed as ineffective
assistance of appellate counsel.” ECF No. 556 at p.5. As to
Ground Three, Wright does not explain why the issue was not
raised on appeal but once again states that “[f]ailure to raise
this claim should be viewed as ineffective assistance of
counsel.” Id. at p.8.
2

said he rejected.

The lead prosecutor for Wright’s case was the

Honorable George J. Hazel, a United States District Judge for the
District of Maryland and, therefore, one of Judge Hollander’s
colleagues.

Upon confirming that Judge Hazel might be called

upon to testify in this matter, Judge Hollander recused herself
from further consideration of the claims herein and the
undersigned was assigned to Mr. Wright’s case.
An evidentiary hearing was held on January 6, 2016, and
March 1, 2016.

On the first day of the hearing, the plea offered

to Wright was admitted into evidence.

See ECF No. 622.

Under

the terms of the plea agreement3, Wright would agree to plead
guilty to one count of Conspiracy to Distribute and Possess with
Intent to Distribute One Kilogram or more of Heroin, violation of
21 U.S.C. § 846.

See id.

The plea agreement informed Wright

that by pleading guilty he faced a maximum statutory penalty of
life imprisonment.

See id.

However, the plea agreement

minimized Wright’s sentencing exposure as it was one under Rule
11(c)(1)(C), whereupon the parties agreed to a sentencing range
of 180-240 months.

See id.

With respect to the sentencing

guidelines, the plea agreement also contained a stipulation of
facts whereby Wright would agree that the government could prove
beyond a reasonable doubt that the amount of heroin involved in
the conspiracy was at least three but less than ten kilograms.
See id.

In return for Wright’s plea of guilty, the United States
3

Use of the term “plea agreement” is not meant to
suggest that Wright ever accepted the plea offered by the
government.
3

agreed to recommend a sentence between 180 and 240 months
imprisonment.

See id.

Wright did not accept the government’s

plea offer.
II.

Legal Standard

Wright acknowledges that he failed to raise Grounds One
and Three on direct appeal but contends that, in failing to do
so, his appellate counsel was ineffective.

Accordingly, all

three grounds for relief are essentially ineffective assistance
of counsel claims.

The standards established by the United

States Supreme Court in determining whether a defendant was
denied his Sixth Amendment right to effective assistance of
counsel are set forth in Strickland v. Washington, 466 U.S. 668,
687 (1984).

Under Strickland, a plaintiff must show (1) that

counsel’s performance was so deficient that it fell below an
objective standard of reasonableness, and (2) that counsel’s
deficiency resulted in prejudice so as to render the results of
the trial unreliable.
entitled to a

Id. at 687-91.

Counsel’s performance is

presumption of reasonableness.

Id.

Thus, a

habeas plaintiff challenging his conviction on the grounds of
ineffective assistance must overcome a strong presumption that
the challenged actions constituted sound trial strategies.
at 689.

Id.

The Court in Strickland cautioned against the ease in

second-guessing counsel’s unsuccessful assistance after the
adverse conviction and sentence are entered.

4

Id.

The Fourth

Circuit Court of Appeals specifically recognized that ineffective
assistance of counsel may not be established by a “Monday morning
quarterbacking” review of counsel’s choice of trial strategy.
Stamper v. Muncie, 944 F.2d 170, 178 (4th Cir. 1991), cert.
denied, 506 U.S. 1087 (1993).
Under the second prong of Strickland, a petitioner must
show that the errors were “sufficiently serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687.

Furthermore, a court may address

the two prongs in any order and a failure to establish one prong
obviates a need to address the other.

Id. at 697 (“Although we

have discussed the performance component of an ineffectiveness
claim prior to the prejudice component, there is no reason for a
court deciding an ineffective assistance claim to approach the
inquiry in the same order or even to address both components of
the inquiry if the defendant makes an insufficient showing on
one.

In particular, a court need not determine whether counsel's

performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies.

The

object of an ineffectiveness claim is not to grade counsel's
performance.

If it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.

Courts

should strive to ensure that ineffectiveness claims not become so

5

burdensome to defense counsel that the entire criminal justice
system suffers as a result.”).
The Supreme Court has held that a defendant’s Sixth
Amendment right to counsel extends to the plea-bargaining
process.

Missouri v. Frye, 132 S. Ct. 1399, 1405-06 (2012).

However, the Court has also made clear that a defendant has “no
right to be offered a plea . . . nor a federal right that the
judge accept it.”

Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012)

(quoting Frye at 1410).

“In Lafler v. Cooper, the Supreme Court

held that defendants have a right to effective assistance of
counsel during the plea-bargaining process, which includes
counsel’s advice that leads to an offer’s rejection.”

United

States v. Dailey, Civil No. 3:12-cv-362, 2013 WL 1768053, *4
(E.D. Va. Apr. 24, 2013) (citing Lafler v. Cooper, 132 S. Ct. ,
1384-85 (2012)).
In assessing counsel’s performance in advising a
defendant on a plea agreement, “the Fourth
Circuit has held that the professional norms
surrounding plea negotiations require defense
counsel to do the following: 1) notify the client
of a plea offer; 2) advise the client of the
option to proceed to trial; 3) present the client
with the probable outcomes of both the guilty and
sentencing phases of each alternative; and 4)
permit the client to make the ultimate decision.”
Id. (quoting Clark v. United States, No. 07cr281, 2012 WL
253436, at *2 (D. Md. Jan. 26, 2012)).

Ineffective assistance

of counsel may be shown if trial counsel provides “gross
misadvice” regarding a defendant’s “sentencing exposure” and,
6

“but for this gross misadvice, there is a reasonable probability
that [defendant] would have accepted the plea agreement[.]”
United States v. Merritt, 102 F. App’x 303, 307 (4th Cir. 2004);
see also Magana v. Hofbauer, 263 F.3d 542, 547-48 (6th Cir.
2001) (requiring that movant show deficient performance and
that, but for counsel’s advice, he would have pled guilty);
United States v. Gordon, 156 F.3d 376, 379-81 (2d Cir. 1998)
(per curiam) (recognizing ineffective assistance of counsel
claim where counsel’s gross misadvice regarding potential
sentencing exposure caused defendant to reject plea offer);
United States v. Day, 969 F.2d 39, 42-43 (3d Cir. 1992) (same).
To satisfy the prejudice prong of the Strickland test in
the context of plea negotiations, a petitioner must demonstrate
a reasonable probability that:

(1) he would have accepted a

plea offer but for counsel's ineffective assistance; (2) the
plea would have been entered without the prosecution canceling
it or the trial court refusing to accept it; and (3) the plea
would have resulted in a lesser charge or a lower sentence.
Lafler, 132 S. Ct. at 1384–85.
A criminal defendant’s right to effective assistance of
counsel also requires that counsel be provided for the direct
appeal of a criminal conviction.

Bell v. Jarvis, 236 F.3d 149,

164 (4th Cir. 2000) (en banc)
In applying the [Strickland] test to
claims of ineffective assistance of counsel on
7

appeal, however, reviewing courts must accord
appellate counsel the presumption that he
decided which issues were most likely to afford
relief on appeal. Counsel is not obligated to
assert all nonfrivolous issues on appeal, as
there can hardly be any question about the
importance of having the appellate advocate
examine the record with a view to selecting the
most promising issues for review. Indeed,
winnowing out weaker arguments on appeal and
focusing on those more likely to prevail, far
from being evidence of incompetence, is the
hallmark of effective appellate advocacy.
Although recognizing that notwithstanding
Barnes, it is still possible to bring a
Strickland claim based on counsel’s failure to
raise a particular claim on direct appeal, the
Supreme Court has recently reiterated that it
will be difficult to demonstrate that counsel
was incompetent. Generally, only when ignored
issues are clearly stronger than those
presented, will the presumption of effective
assistance of counsel be overcome.
Id. (internal citations and quotation omitted).
As our court of appeals has elaborated, “a discussion
with the defendant regarding a direct appeal and what issues to
pursue (if any) is critical, as `multiplying assignments of
error will dilute and weaken a good case and will not save a bad
one.’”

Frazer v. South Carolina, 430 F.3d 696, 705 (4th Cir.

2005) (quoting Jones v. Barnes, 463 U.S. 745, 752 (1983)).

III.

Analysis

Ground One – Error in Instructions and Verdict Form
As his first ground for relief, Wright contends that his
conspiracy conviction was obtained in violation of the Fifth

8

Amendment right to due process of law.

According to Wright,

“drug type and quantity must be proven beyond a reasonable doubt
before a jury can return a guilty verdict on an aggravated drug
trafficking offense.”

ECF 556-1 at p.6.

As to why he did not

raise this issue on direct appeal, Wright contends that his
appellate counsel did not follow his instructions to raise the
issue.
Wright’s first ground for relief is without merit.
Contrary to Wright’s assertions, drug type and quantity were
submitted to the jury and proven beyond a reasonable doubt.
The trial court’s instructions to the jury were:
In a drug distribution case, if the jury
finds that the government has proven a defendant
guilty of the conspiracy, then the jury must
determine beyond a reasonable doubt what kind or
type of drug, and what quantity of drug is
attributable, or are attributable to the
defendant under consideration.
ECF No. 565-8 at p. 85.

The court then went on, in great

detail, to give further instructions as to how the jury should
go about “determining the type and quantity of controlled
substance to attribute to a particular defendant.”

Id. at pp.

85-88.
The Verdict Form in the underlying criminal case plainly
put the matter of drug type and quantity on Count One before the
jury.

See ECF No. 382.

It read as follows: “On Count One of

the Indictment charging Calvin Wright with conspiracy to

9

distribute a controlled substance, how do you find the
defendant:” Not Guilty or Guilty.
it found Wright Guilty.

See id.

Id.

The jury indicated that

Section 2(A) of the Verdict

Form stated:
If you find Calvin Wright guilty of Count One of
the Indictment, do you find that he conspired to
distribute a mixture or substance containing a
detectable amount of heroin?
__________

__________

Yes

No

The jury checked “Yes” on the Verdict Form.

The Verdict Form

went on to ask the jury, “[i]f you answered yes to 2.A, what
quantity of a mixture or substance containing a detectable
amount of heroin do you find attributable to Calvin Wright?”
Id.

The jury was given three choices: (a) 1 kilogram or more;

(b) More than 100 grams but less than 1 kilogram; or (c) Less
than 100 grams.

See id.

The jury indicated that it found 1

kilogram or more of a mixture or substance containing a
detectable amount of heroin attributable to Wright.

See id.

As

to Count One, the jury further indicated on the Verdict Form
that “Yes”, it found Calvin Wright “conspired to distribute a
mixture or substance containing a detectable amount of cocaine.”
Id.
To the extent that Wright’s claim is that the Verdict
Form was incorrect in that it asked for a finding of guilt prior

10

to establishing the drug weight, that objection is without
merit.

Interrogatories to establish the types and amounts of

drugs involved in a drug conspiracy, such as were used herein,
are entirely appropriate. See, e.g., United States v. Walters,
350 F. App’x 826, 829-30 (4th Cir. 2009).

Furthermore, Wright

did not object to the Verdict Form during the charge conference.
See ECF No. 480 at pp. 57-67.

Ordinarily,

a failure to object

contemporaneously to a verdict form waives the issue.

However,

in criminal cases, "[a] plain error that affects substantial
rights may be considered even though it was not brought to the
court's attention."

Fed. R. Crim. P. 52(b); see also Walters,

350 F. App’x at 830 (“Next, the defendants challenge the
district court’s jury instruction on the conspiracy charge.
Because this argument was not raised at trial, our review is for
plain error.”).

In this case, for the reasons discussed above,

there is no error in the verdict form, plain or otherwise.
Given the foregoing, it is clear that Ms. Skelton was
not ineffective in failing to raise this claim on appeal.
Therefore, her performance was not ineffective under Strickland
because Wright cannot show prejudice for her failure to raise a
clearly frivolous argument.

Accordingly, the first ground

advanced by Wright in his § 2255 motion does not merit habeas
relief.
Ground Three – Duplicity of Count One

11

Wright’s also argues that Count One is duplicitous and
calls into question the unanimity of the jury verdict.
Specifically, he contends that Count One charges two different
conspiracies – i.e., a conspiracy to distribute heroin and a
separate conspiracy to distribute cocaine.

Acknowledging that

he failed to raise the issue on direct appeal, Wright argues
that appellate counsel was ineffective for failing to raise it.
“[D]uplicity is the joining in a single count of two or
more distinct and separate offenses.”

United States v. Burns,

990 F.2d 1426, 1438 (4th Cir. 1993) (quoting 1 Charles A.
Wright, Federal Practice and Procedure § 142, at 469 (2d ed.
1982)).

“When the indictment on its face presents more than one

conspiracy in a single count, such a count is improper, as it is
considered duplicitous.”

United States v. Eury, Nos. 1:14CR39-

1, 1:14CR39-5, 2015 WL 1861807, *5 (M.D.N.C. April 23, 2015)
(citing United States v. Jackson, 926 F. Supp.2d 691, 700-01
(E.D.N.C. 2013)).

As our appeals court has stated:

The overall vice of duplicity is that the jury
cannot in a general verdict render its finding
on each offense, making it difficult to
determine whether a conviction rests on only one
of the offenses or on both. Adverse effects on
a defendant may include improper notice of the
charges against him, prejudice in the shaping of
evidentiary ruling, in sentencing, in limiting
review on appeal, in exposure to double
jeopardy, and of course the danger that a
conviction will result from a less than
unanimous verdict as to each separate offense.

12

United States v. Kamalu, 298 F. App’x 251, 254 (4th Cir. 2008)
(quoting United States v. Duncan, 850 F.2d 1104, 1108 n.4 (6th
Cir. 1988) abrogated on other grounds by Schad v. Arizona, 501
U.S. 624 (1991)).
The Kamalu court goes on to explain that “two or more
acts, each of which would constitute an offense standing alone
and which therefore could be charged as separate counts of an
indictment, may instead be charged in a single count if those
acts could be characterized as part of a single, continuing
scheme.”

Id. (citations omitted); see also United States v.

Kernodle, 367 F. Supp. 844, 851 (M.D.N.C. 1973) (“An agreement
to commit several crimes is but one offense even though one or
more means are alleged to have been used to complete the
conspiracy. It is well settled that it is permissible to charge
a conspiracy to commit several crimes, all in one count of an
indictment without it being duplicitous.”) (internal citations
omitted).

“Moreover, a duplicitous count is not to be dismissed

unless it causes prejudice to the defendant.”

Id. (citations

omitted).
With respect to duplicity challenges where an indictment
alleges possession with intent to distribute more than one type
of drug, this court has noted:
The rule against duplicity “does not
prevent an indictment from alleging more than
one act in a single count if the acts are part
of a continuous course of conduct.” See United
13

States v. Smith, 373 F.3d 562, 563-68 (4th Cir.
2004) (explaining that only one of the listed
offenses needed to be demonstrated for the
defendant to be convicted on the count because
the offenses were part of a larger and
“continuous scheme”). In a case factually
similar to Petitioner’s, the United States Court
of Appeals for the Eighth Circuit succinctly
explained why counts alleging possession with
intent to distribute more than one type of drug
are not duplicitous, noting that the charges are
for “one offense, conspiracy to distribute a
controlled substance, in two ways, with
marijuana and methamphetamine.” U.S. v. Moore,
184 F.3d 790, 793 (1999). In the case at hand,
Petitioner was convicted on a single count
alleging possession with intent to distribute
controlled substances. Gov.’s Opp’n 4, ECF No.
63. Although two different drugs were at issue,
they were prosecuted under one statute as a
“continuing offense” encapsulated in an ongoing
course of conduct. Smith, 373 F.3d at 563-64.
Allen v. United States, Criminal Action No. RDB 08-0222, 2013 WL
1247658, *4 (D. Md. Mar. 25, 2013) (Bennett, J.); see also
United States v. Barlin, 686 F.2d 81, 89 (2d Cir. 1982) (“The
mere fact that more than one substance is charged, however, does
not mean there are multiple conspiracies.”).
As the foregoing discussion confirms, there is no merit
to Wright’s duplicity claim because, even though two different
drugs were at issue, Count One properly charged a single
conspiracy to distribute controlled substances.

Furthermore,

any question on the unanimity of the jury’s verdict is
undermined by the fact that a special verdict form was used
wherein the jury specifically found that Wright conspired to
distribute both heroin and cocaine.
14

Therefore, Wright’s claim

of ineffective assistance of counsel based on appellate
counsel’s failure to raise the issue on appeal fails on both
prongs of the Strickland analysis.

See Allen at *4-5 (“Because

the count was not duplicitous, an argument in court based on
duplicity would have no basis; since it is not within the wide
range of professional conduct to pursue claims with no basis,
counsel did not perform ineffectively with regard to the first
Strickland prong.

As to the second prong, which asks if actual

prejudice occurred, . . . “[b]ecause the duplicity assertion
lacks merit, it is improper to assume its consideration would
have altered the proceedings.”); see also Orbe v. True, 233 F.
Supp.2d 749, 765 (E.D. Va. 2002) (“When ineffective assistance
claims are based on the failure to raise, develop, or properly
present an underlying claim, an examination of the merits of the
underlying claim will frequently be dispositive of the
ineffective assistance claim.

If the underlying claim is

meritless, counsel’s failure to pursue it can be neither
unreasonable nor prejudicial, and no further inquiry is
necessary.”).4

4

Wright’s duplicity argument would have failed for the
additional reason that it was not raised prior to trial. See
United States v. King, 628 F.3d 693, 699 (4th Cir. 2011) (“[W]e
note that King has waived his duplicity challenges because he
failed to raise them prior to trial.”); see also United States v.
Burney, 441 F. App’x 993, 995 (4th Cir. 2011) (“A challenge to a
defect in the indictment must be brought before trial.”).
15

Ground Two – Failures Surrounding Plea Agreement
Wright filed an affidavit, sworn to under penalty of
perjury, that stated the following:
2.

I instructed Mr. Edwards5 to seek a plea
agreement with the Prosecuting Attorney.
The Prosecuting Attorney presented an
11(c)(1)(C) plea for 15 years. Mr.
Edwards advised me not to accept the plea
offer because the Government could not
establish the drug weight of three (3) to
ten (10) kilograms of heroin.

ECF No. 556-2; see also Reply Brief for Calvin Wright (ECF No.
571) at p. 7 (“To be clear, Mr. Wright is claiming that Mr.
Edwards informed him that the Government could not prove a
conspiracy to distribute 3 to 10 kilograms of heroin, and that
Mr. Wright should not accept a plea agreement in which Mr.
Wright would be required to admit to a greater drug quantity
than the Government could prove.”); Memorandum in Support of §
2255 Motion (ECF No. 556-1) at p. 14 (“It is equally clear that
Counsel focused on incorrect legal standards when advising Mr.
Wright not to accept the Government’s plea offer.”).
By the time Wright testified at the evidentiary hearing
in this matter, on January 6, 2016, his testimony regarding the
advice he received from counsel concerning the proposed plea
agreement had changed in certain respects.
Q:

And do you recall the terms of the plea
offer?

5

Assistant Federal Public Defenders Malik Edwards and
Joseph Balter represented Wright at trial.
16

A:

I just, I remember it being 15 years.
And the drug weight was 3 to 10 kilos.

Q:

And why did you - - well, did you accept
or reject the plea offer?

A:

I rejected the plea offer because my
original indictment was for 100 grams or
more. They superseded me for a kilo or
more. Then when I get the indictment,
the indictment is for more, even more
drugs, 3 to 10 kilos.

Q:

The indictment or the - -

A:

I mean the plea offer was for more drugs
than the indictment was for.

Q:

So why did you turn down the plea offer?

A:

Because, because of the drug weight.

Q:

What was your understanding as far as - -

A:

That they had to prove the 3 to 10 kilos
at trial.

Q:

And did you discuss this with your
attorneys?

A:

Yes.

Q:

Did they agree that they had to, the
government would have to prove 3 to 10
kilos?

A:

They agreed to, to what I said. I’m
saying like they couldn’t prove, they
would have a hard time proving the kilo
and the 3 to 10 kilos. They was
hopscotching for real. And I felt - - so
I asked them to go back and ask for 10
years.

Q:

Okay.

A:

Yes.

Q:

And what was the response?

A:

They, the government declined.

And did they, do you know?

17

Q:

Did either attorney ever tell you what
they thought your chances were of winning
at trial?

A:

I mean, you know, they say it was, they
say they were 50/50 because they were
going to do their best.

Court: 50/50 to be acquitted or 50/50 on the
drug weight?
A:

I mean, I know I wasn’t going to get
acquitted, but not 50/50 on the drug
weight. Just 50/50 of, you know, of
going to trial. You know, they say, you
know, might, I might win, might lose.
You know what I’m saying?

Court: You said you knew you would not be
acquitted, is that right?
A:

I felt like with the, you know, the
weight against me, I didn’t feel like I,
I didn’t feel like, you know, I could
win. But I felt like I could at least,
the time they were offering on the plea
agreement, I felt like I could get that
at trial. And they agreed with me.

Q:

So is it your understanding that if you
went to trial, the government had to
prove only one kilogram?

A:

Yeah. I felt like if, if I went to trial
and I got found guilty of a kilo, I felt
like I would be sentenced for a kilo.

Q:

Whereas with the plea offer under the 3
to 10 kilos, you would be sentenced to
whatever the agreement said, which was 15
to 20 years?

A:

Yes.

Q:

So you, did you think you were getting a,
it would be better for you to go to
trial, as opposed to taking the plea
offer?

A:

I felt like if I went to trial, I could
get the same time and have my, and keep
all my appeal rights.
18

Court: Did your lawyers advise you that the drug
weight for sentencing would be whatever
you were found guilty of at trial?
A:

No, they did not.
argument.

Q:

What did your attorneys explain to you
about how, what you would be sentenced
on?

A:

As far as they were, as far as we were
concerned, we were, I was going to be
sentenced for a kilo or more. I mean, a
kilo. Or more, just, I found that out at
sentencing.

Q:

You found at what?

A:

What “or more” meant.

Q:

Mr. Wright, did your attorneys explain to
you the burden of proof at sentencing in
regard to weight?

A:

No.

Q:

According to the plea offer, what was the
burden of proof that was mentioned in the
plea offer concerning the 3 to 10
kilograms?

A:

I got to look.

Q:

Mr. Wright, if you will look - - do you
need to refresh your recollection?

A:

Yes. I was trying to find it in here.
Yeah.

Q:

Paragraph Six.

A:

Yeah. The plea offer says the offense
conspiracy to distribute and possess with
intent to distribute at least 3
kilograms, but less than 10 kilograms.

Q:

Okay.

A:

But it says prove beyond a reasonable
doubt.
19

That’s my whole

Q:

So is your understanding that they would
have to prove beyond a reasonable doubt - excuse me - - 3 to 10 kilos?

A:

Yes.

Q:

And that you agreed to the beyond a
reasonable doubt if you signed, if you
agreed to the - -

A:

Yes.

Q:

- - accepted the offer?

A:

Yes.

Q:

So it was your understanding, then, that
the government would have to prove 3 to
10 kilos?

A:

At trial.

Q:

At trial?

A:

Yes.

Q:

And did your attorneys tell you whether
they thought they could prove that or
not?

A:

They, they didn’t explain it right. You
know what I’m saying? Like all - - my
understanding and their understanding,
they agreed with me that if I went to the
trial, I could get the same time that
they was basically offering in the plea
offer.

That’s why I didn’t accept it.

* * *
Q:

If you had understood the plea offer and
how the sentencing worked had you gone to
trial, would you have taken, accepted the
plea offer?

A:

I would have accepted the offer if I’d
have known going to trial that they would
have just had to, I get found guilty of
the bare minimum of a kilo and I could be
sentenced to whatever the drug weight the
drug, I mean the judge found to be by the
preponderance of the evidence. The plea
20

agreement says “beyond a reasonable
doubt.” When I got sentenced, the judge
said “by preponderance of the evidence.”
And if I’d known that, how can you win?
Court: Did you think the reasonable doubt
standard would apply at sentencing?
A:

The reasonable doubt?

Court: Going to drug weights at sentencing?
A:

No. I thought that the kilo was just,
the kilo, I thought the kilo was what I
was going to be sentenced for if I got
found guilty. And that’s a level - - I
don’t know. Level 30 or something like
that.

Court: Why did you think that?
A:

Because of the sentencing guidelines.

Q:

. . . Did you think that if you were
convicted at trial –

A:

yes.

Q:

- - that you would only be sentenced to,
for one kilogram?

A:

Yes.

Q:

And not 3 to 10 kilograms?

A:

And not 3 to 10.

Q:

And again, if you had understood exactly
how the process worked, you would have
accepted the plea offer?

A:

I would have accepted the plea offer.

Not 3 to 10 kilograms.

* * *
Q:

This plea agreement that we’ve been
discussing - - if I can return to it for
just a second - - with whom did you
discuss it, specifically?

A:

Joe Balter and Malik Edwards.
21

Q:

And were they together when they
discussed it with you?

A:

Yes.

Q:

And where did you have that discussion?

A:

At, well, it’s called CDF now but it was
Supermax then.

Q:

And they were both there?

A:

Yes.

Q:

And you had a copy of the plea agreement
at that time?

A:

Yes.

Q:

For how long did you discuss the
agreement?

A:

I can’t recall.
I can’t recall.
don’t remember.

Q:

And just to be clear. Their advice to
you was that you reject this plea
agreement?

A:

Their advice to me was that at trial I
would, I could get the kilo, that, you
know, what I agreed to, that I could get
the same time that they were offering in
the plea agreement at trial.

Q:

So their advice to you was that they
believed the government could not prove
more than 3, but less than 10, kilograms
of weight at trial?

A:

Yes.

Q:

And on that basis, you should reject the
plea?

A:

Yes.

That was six years ago.
Hour. Half an hour. I

I rejected the plea.

ECF No. 624, at pp. 13-19, 23-24 (Transcript of January 6, 2016
Hearing).
22

Wright’s assertions were contradicted by the testimony
of both Mr. Edwards and Mr. Balter.

Regarding his familiarity

with the interplay between the drug conspiracy statute and the
guidelines, Mr. Malik Edwards, Wright’s attorney, testified:
Q:

And are you familiar with the criminal
provisions of Title 21 of the United
States Code?

A:

Yes.

Q:

Generally familiar with the elements of
the principal offenses? For example,
possession with intent to distribute or
conspiracy?

A:

Yes.

Q:

Familiar with the elements that the
government must prove to charge someone
with a sentence carrying a mandatory
minimum?

A:

Yes.

Q:

And what is - - in order to prove a
sentence carrying a mandatory minimum, in
general, what does the government need to
prove?

A:

. . . What was the question?

Q:

The question was, as a general matter,
does the, what does the government need
to demonstrate in order to prove a
possession or conspiracy charge carrying
a mandatory minimum sentence in federal
court?

A:

Well, the question is centered around the
mandatory minimum part. My, my
recollection of the statute was that
certain amounts of drugs triggered
certain mandatory minimums. And the
government would have to prove that,
that, well those amounts. They’d have to
prove those amounts.

23

Q:

By what standard?

A:

For mandatory minimums, beyond a
reasonable doubt.

Q:

And are you also familiar with the United
States Sentencing Guidelines from your
work as an assistant federal public
defender?

A:

I am.

Q:

And familiar with the sentencing
guidelines that apply to narcotics cases?

A:

Yes.

Q:

And in general, what is the principal
factor in determining a narcotics
guidelines sentence?

A:

Sentencing guidelines had, well, a number
of charts related to drug offenses.
There’s a drug quantity table that, that
associated certain guideline ranges to
certain amounts of drugs.

Q:

And would you agree with me that the
standard of proof that applies for
calculating those amounts is something
less than beyond a reasonable doubt?

A:

In the sentencing context, yes.

ECF No. 626, at pp. 5-7 (Transcript of March 1, 2016 Hearing).
As to Wright’s sentencing exposure, Mr. Edwards
testified:
Q:

And did you, do you recall making any
calculation about Mr. Wright’s sentencing
exposure if he was convicted at trial?

A:

Yes, I’m sure I did.

Q:

Did you discuss the maximum possible
sentence that he might receive?

A:

Yes.

24

Q:

And would you agree that Mr. Wright faced
a maximum sentence of life imprisonment,
given the charge of possession with
intent to distribute one kilogram or more
of heroin?

A:

Yes.

Id. at 9; see also id. at 21-22 (explaining how he would have
discussed Wright’s sentence exposure with him).
The court does not find Wright to be an entirely
credible witness as certain portions of his testimony before the
court were obviously untruthful.

For example, Wright maintained

that Edwards told him not to accept the plea agreement.
Specifically, in his sworn affidavit, Wright averred:
2.

I instructed Mr. Edwards to seek a plea
agreement with the Prosecuting Attorney.
The Prosecuting Attorney presented an
11(c)(1)(C) plea for 15 years. Mr.
Edwards advised me not to accept the plea
offer because the Government could not
establish the drug weight of three (3) to
ten (10) kilograms of heroin.

ECF No. 556-2; see also Memorandum of Law in Support of Motion
to Vacate (ECF No. 556-1 at p.14) (“Mr. Wright claims Mr.
Edwards advised him the evidence could not support a conviction
for a conspiracy to distribute 3 to 10 kilograms of heroin. . .
[I]t is equally clear that Counsel focused on incorrect legal
standards when advising Mr. Wright not to accept the
Government’s plea offer.”); Reply Brief for Calvin Wright (ECF
No. 571) at p. 7 (“To be clear, Mr. Wright is claiming that Mr.
Edwards informed him that the Government could not prove a
conspiracy to distribute 3 to 10 kilograms of heroin, and that
Mr. Wright should not accept a plea agreement in which Mr.
25

Wright would be required to admit to a greater drug quantity
than the Government could prove.”).
However, Mr. Edwards testified as follows:
Q:

And can you tell us how those plea
discussions came about or what they
entailed?

A:

If I recall, I think the government had
made overtures from early on in the case,
overtures that, you know, asking, you
know, if Mr. Wright is interested in a
plea and even cooperating early on. . . .
Mr. Wright was steadfast in his innocence
the whole time and so he did not want to
entertain the government’s overtures.
On the eve of trial, the
government made one more overture and,
actually, it sort of made an offer that I
felt was worth bringing to Mr. Wright’s
attention, and did just that. You know,
went over the offer with him. And he
maintained his innocence and didn’t want
to accept the offer.
* * *

Q:

Just to be clear. What was your
recommendation to Mr. Wright about
whether he should accept or reject this
agreement?

A:

I believe I recommended that he should
accept the agreement.

Q:

Did Mr. Balter concur in that advice?

A:

I believe so.
* * *

Q:

The third sentence [of Wright’s
affidavit] reads, quote: “Mr. Edwards
advised me not to accept the plea offer
because the government could not
establish the drug weight of 3 to 10
kilograms of heroin.” Close quote. Is
that an accurate statement?
26

A:

That’s not my recollection.

Q:

Did you have any understanding based on
the discovery that you received in the
criminal case against Mr. Wright as to
what drug weight the government might
eventually be able to establish at trial,
or at sentence?

A:

Did I have an understanding?

Q:

Yes.

A:

Yes. In fact, you know, my recollection
is that it might have even been more than
this 3 to 10 kilograms. I remember it
being a very large case, I should say, a
large conspiracy case. And I think Mr.
Wright’s exposure was, was pretty high.

Q:

Did you advise him of that fact, that the
government might prove more than 3 to 10
kilograms of heroin at trial or at
sentencing?

A:

I can’t remember if I said an exact
amount. I mean, the nature of the
conversations that I do remember was
that, you know, he had a lot of exposure
and the evidence that the government had
provided us that they would show at trial
struck me as, that we’d have a very
difficult chance of prevailing at trial,
which my advice was for him to take a
plea.

Q:

Let me direct your attention to Paragraph
3. It reads, quote: “Mr. Edwards
informed me that the drug weight was an
element of the offense which the
government had to prove beyond a
reasonable doubt to sustain a conviction
for conspiracy to distribute 3 to 10
kilograms of heroin.” Is that an
accurate statement?

A:

I don’t believe so, no.

Q:

Why not?

A:

The, well, especially in the context of
this plea agreement, Page 2, Paragraph 3.
27

Q:

You’re referring to Petitioner’s Exhibit
1?

A:

I believe so, yes. That, that paragraph
says rather explicitly what the
government would have to prove beyond a
reasonable doubt in terms of the statute,
at least for that charge. And so I would
explain that in terms of what the
government had to prove beyond a
reasonable doubt if it would have been
that, whatever the amount it says in
here. And then also have gone over
Paragraph 6, what the guidelines
stipulation was. And, you know,
generally as an attorney, as a defense
attorney, the different standards of
proof for, in the sentencing context and
in the trial.

Q:

Let me direct your attention to Paragraph
4 on Page 2 of Mr. Wright’s affidavit.
It reads, quote: “If Mr. Edwards would
have advised me of the fact that the drug
weight could be determined by the judge
by a mere preponderance of the evidence,
once the jury finds the threshold drug
quantity, I would have accepted the
prosecutor’s plea offer.” Close quote.
Now I recognize that you can’t
speak to specifically what was in Mr.
Wright’s mind. But did Mr. Wright, at the
time you discussed Petitioner’s Exhibit 2
in 2010, did he suggest to you in any way
that that drug quantity was the, the
reason that he did not accept the plea
agreement?

A:

My recollection was he, Mr. Wright did
not want to accept the plea agreement
because he didn’t believe that he was
guilty of what he was charged with.
* * *

Court: Mr. Edwards, did the reason he, Mr.
Wright, felt he was not guilty was
because of the conspiracy implications
and the fact that he didn’t feel like he
could or should be held responsible for
28

the entire, for the drug weight for the
entire conspiracy?
A:

My recollection, Your Honor, is that Mr.
Wright felt that he was innocent and
wasn’t guilty of anything that was
charged in the indictments against him.
* * *
And to be clear, your advice to him was
not that he should reject this plea
agreement because of an amount of heroin
the government could or couldn’t prove at
trial? Is that accurate?

Q:

A:

Yeah. No. My advice was to accept the
plea offer.

ECF No. 626 at 9-10, 12, 16-19, 25-26.
Mr. Balter, Wright’s other attorney, also recommended
that Wright accept the plea agreement.
Q:

Did you, do you recall anything specific
about the meeting as far as reviewing the
agreement with Mr. Wright?

A:

My note reflects the fact that I
recommended the agreement and he rejected
it.

ECF No. 626 at 30.
Therefore, Wright’s self-serving assertions, at various
points in time, that Mr. Edwards advised him to reject the plea
offer is plainly contradicted by the testimony of Mr. Edwards
and Mr. Balter.

The court finds Mr. Edwards and Mr. Balter to

be the more credible sources on this point of contention.
Likewise, the court does not find credible Wright’s
assertions that Mr. Edwards told him that the government “could
not establish the drug weight of three (3) to ten (10) kilograms
of heroin” given Mr. Edwards’ completely contradictory
29

testimony.

See ECF No. 626 at 16 (“In fact, you know, my

recollection is that it might have even been more than this 3 to
10 kilograms.

I remember it being a very large case, I should

say, a large conspiracy case.
was, was pretty high.”).

And I think Mr. Wright’s exposure

Finally, the court finds credible Mr.

Edwards’ testimony that he advised Wright of his sentencing
exposure.
In sum, the court cannot find that Mr. Edwards’ advice
to Wright in connection with the proposed plea agreement was
objectively unreasonable, in large part, because it does not
credit Wright’s version of what happened.

His “shifting

allegations” regarding the advice he allegedly received from
trial counsel severely undermine his credibility.

Mattox v.

United States, No. 3:10-CR-1(CAR), 2013 WL 5965321, *7 (M.D. Ga.
Nov. 7, 2013) (“Further, Petitioner’s shifting allegations, as
illustrated by the stark differences between what Petitioner
alleged in his Section 2255 Motion and what Petitioner alleged
at the evidentiary hearing, also cast doubt on his
credibility.”).
In addition, a number of Wright’s allegations regarding
the advice Mr. Edwards gave him, even if true, do not establish
that counsel was ineffective.

For example, to the extent that

Wright argues counsels’ predictions about his likelihood of
success or what the government could prove at trial were not
accurate, that does mean his attorneys were ineffective.

A

claim for ineffective assistance of counsel will not succeed
30

merely because a lawyer's prediction does not become reality.
Lafler v. Cooper, 132 S. Ct. 1376, 1391 (2012) (“[A]n erroneous
strategic prediction about the outcome of a trial is not
necessarily deficient performance.”).
Furthermore, Wright cannot demonstrate Strickland
prejudice in connection with his attorney’s handling of the
proposed plea.

Even if the court were to assume that Wright

would have accepted the plea offer but for counsel’s ineffective
assistance, he has not shown that the plea offer would have been
entered without the trial court refusing to accept it.

Indeed,

Wright offered no evidence on this point and the court believes
that there is an increased probability that a plea agreement
will be rejected by a sentencing court when it is one under
Rule 11(c)(1)(C) because the court’s sentencing discretion is
fettered by agreement of the parties.

See, e.g., United States

v. Seidman, 483 F. Supp. 156 (E.D. Wis. 1980) (“At the outset,
the Court would note that it never will accept a Rule
11(e)(1)(C) type plea agreement.

It is this Court’s prerogative

to determine the type of sentence that should be imposed upon a
defendant for the offense of which he or she has been adjudged
guilty.”); United States v. Alatorre, Nos. CR 09-42-BLG-RFC, CV
11-28-BLG-RFC, 2011 WL 1743843, *1 (D. Mont. May 4, 2011) (“At
sentencing, I accepted the plea agreement, even though I almost
never accept binding agreements under Rule 11(c)(1)(C).”).

31

Therefore, Wright’s motion under 28 U.S.C. § 2255 was
DENIED in its entirety and the Clerk was directed to remove the
matter from the court’s docket.
Additionally, the court has considered whether to grant
a certificate of appealability.6

See 28 U.S.C. § 2253(c).

A

certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).

The court concludes that the governing

standard is not satisfied in this instance.

Accordingly, the

court DENIES a certificate of appealability.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record and unrepresented
parties.
IT IS SO ORDERED this 19th day of October, 2016.
ENTER:
David A. Faber
Senior United States District Judge
6

The time to appeal runs from the filing of the Judgment
Order and not this Memorandum Opinion.
32