Byrd v. USA - 2255
Filing
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MEMORANDUM OPINION AND ORDER denying the Motion to Vacate Sentence. Signed by Judge Joseph R Goodwin on 8/20/14. (c/m 8/20/14 bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BRUCE ERIC BYRD,
Petitioner,
v.
CIVIL ACTION NO. 1:13-cv-02775
(Criminal No. 1:11-cr-00657)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
Now before the court is Petitioner Bruce Eric Byrd’s Motion to Vacate Sentence [Docket
165]. For the reasons set forth below, the motion is DENIED.
I.
Background
On December 6, 2011, a federal grand jury indicted the petitioner, Bruce Eric Byrd, for
violation of several federal statutes with regard to the murder of federal witness Isaiah Callaway.
(See Indictment [Docket 4]). On February 23, 2012, the grand jury returned a superseding
indictment. (See Superseding Indictment [Docket 16]). In the superseding indictment, Byrd was
charged with: conspiracy to use interstate communication facilities in the commission of
murder-for-hire under 18 U.S.C. §§ 1958(a), (j); conspiracy to murder a witness, resulting in
death, under 18 U.S.C. §§ 1512(a)(1)(C), (3)(A), (k); use and discharge of a firearm during and in
relation to crimes of violence, causing death by murder, under 18 U.S.C. § 924(c); conspiracy to
commit bank fraud and attempted bank fraud under 18 U.S.C. § 1349; and aiding and abetting
under 18 U.S.C. § 2. (See generally id.).
The petitioner and the government came to an agreement whereby the petitioner agreed to
plead guilty to Count Five of the superseding indictment. (See generally Plea Agreement [Docket
57]). The Plea Agreement states:
1.
The Defendant agrees to plead guilty to Count Five of the
Superseding Indictment now pending against him in which he is charged with use
and discharge of a firearm in relation to crimes of violence that may be prosecuted
in a court of the United States, namely:
a.
Violation of 18 U.S.C. § 1958, to wit: conspiracy to use and
cause another to use a facility in interstate commerce with intent that a murder be
committed in violation of the laws of the State of Maryland and the United States,
which resulted in the death of Isaiah Cortez Callaway, as charged in Count One of
the Superseding Indictment; and
b.
Violation of 18 U.S.C. § 1512(a)(1)(C), to wit: conspiracy to
kill a person with intent to prevent the communication by any person to a law
enforcement officer or judge of the United States of information relating to the
commission or possible commission of a Federal offense, as set forth in Count
Three of the Superseding Indictment, resulting in the death of Isaiah Cortez
Callaway, [] in violation of Title 18 U.S.C. § 924(c).
The Defendant admits that he is, in fact, guilty of the offense of using and
discharging a firearm in relation to crimes of violence, resulting in the death of
Isaiah Callaway, as set forth in Count Five, and he will so advise the Court.
(Id. at 1-2). With regard to sentencing, the Plea Agreement provides:
8.
(a) The parties stipulate and agree pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C) that a sentence of forty years (40 years)
imprisonment without parole constitutes an appropriate disposition of this case.
This agreement does not affect the Court’s discretion to impose any lawful fine or
term of supervised release or to set any lawful conditions of probation or supervised
release.
(b) In the event that the Court rejects the forty year sentences agreed
to by the parties, either party may elect to declare the agreement null and void.
Should the Defendant so elect, he will be afforded the opportunity to withdraw his
guilty plea pursuant to the provisions of Federal Rule of Criminal Procedure
11(c)(5).
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(Id. at 7) (emphasis in original). The Plea Agreement was signed by the petitioner on July 17,
2012. (See id. at 9). Judgment was entered against the petitioner on October 15, 2012. (See
Judgment [Docket 108]). The petitioner was sentenced to forty years imprisonment. (See
Sentencing Tr. [Docket 96], at 9).
On September 19, 2013, the petitioner filed the instant motion to vacate his sentence,
pursuant to 28 U.S.C. § 2255. (See Mot. to Vacate (“Petition”) [Docket 165]). The petitioner
alleges that his counsel was ineffective for informing the petitioner that he faced a sentence of
20-25 years for his guilty plea, that the district court exceeded its authority when it sentenced the
petitioner to forty years imprisonment, and that the United States did not state a federal claim
against him because his crimes did not affect interstate commerce. (See id. at 5). In his reply, the
petitioner also alleges that his counsel was ineffective for failing to object to Count Five of the
superseding indictment as defective. (See Def.’s Reply and Supp. Claims (“Reply”) [Docket 180]),
at 13-17).
II.
Standard of Review
Section 2255 of Title 28 of the United States Code provides:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.
28 U.S.C. § 2255(a). It provides that the court shall hold an evidentiary hearing on the motion
“[u]nless the motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief[.]” Id. § 2255(b). “Because the proceeding under 28 U.S.C. § 2255 is a civil
collateral attack upon the judgment of conviction, the burden of proof is upon petitioner to
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establish [success on the merits] by a preponderance of evidence.” Miller v. United States, 261
F.2d 546, 547 (4th Cir. 1958).
In order to prevail on his claim of ineffective assistance of counsel, the petitioner must
demonstrate (1) “that counsel’s representation fell below an objective standard of reasonableness”;
and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688,
694 (1984). The petitioner bears the burden of establishing both deficient performance and
prejudice. See id. at 688-695.
III.
Discussion
The materials supplied by the parties thoroughly demonstrate that the petitioner is unable
to succeed on his claims. Therefore, I FIND that an evidentiary hearing is unnecessary. See 28
U.S.C. § 2255(b).
A. Ineffective Assistance of Counsel
The petitioner argues that his counsel was ineffective because counsel informed the
defendant that his sentence would not exceed 20-25 years imprisonment. The petitioner alleges
that but for counsel’s deficient advice, he would have gone to trial. However, both the Plea
Agreement and the record contain multiple references to the forty year sentence agreed to by the
parties. As set forth above, the Plea Agreement provides that “[t]he parties stipulate and agree
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) that a sentence of forty years (40
years) imprisonment without parole constitutes an appropriate disposition of this case.” (Plea
Agreement [Docket 57], at 7) (emphasis in original). Additionally, during the Rule 11 colloquy,
the court stated, “[T]he parties in this case, as the law allows, have reached an agreement as to
sentence . . . . to a sentence of imprisonment of 40 years.” (Rearraignment Tr. [Docket 54], at
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20:11-15). The court further stated, “[T]his agreement does not affect the Court’s discretion, if it
accepts that 40-year sentence, to impose any other lawful terms of sentence, such as a fine or
supervised release or any other conditions of probation and supervised release that might pertain.”
(Id. at 20:20-24). The court also stated, “[I]f this plea agreement is accepted and if the Court
accepts the plea, the government will make no other argument except that the Court impose the
40-year sentence” and “if the Court were to give a sentence of anything other than 40 years, Mr.
Byrd will be able to appeal that sentence, as would the government.” (Id. at 21:10-12, 23:25). The
court informed the petitioner, “[Y]ou’d have a right, in a normal case, to appeal . . . any sentence
that was imposed. But in this case, you’re agreeing to a 40-year sentence. And if that’s the
sentence, then there’s no appeal because you’ve agreed to it. Do you understand that?” (Id. at
22:13-17). The petitioner responded in the affirmative. (See id. at 22:18). The petitioner did not
indicate at the rearraignment that his counsel had informed him that his sentence would not exceed
twenty-five years. (See generally id.). The court asked the petitioner, “[D]id you think that
anybody has made any promise or agreement with you except what’s in the agreement?” and the
petitioner responded, “No.” (Id. at 22:22-25).
The record of the petitioner’s sentencing hearing also demonstrates the petitioner’s
knowledge that he had agreed to a forty-year sentence. At the sentencing hearing, the court
addressed a letter that the petitioner had written to the court. In the letter, the petitioner expressed
that he was concerned that Tavon Dameon Davis, one of his co-defendants, had agreed to a plea
agreement with the government that called for a lesser sentence than the petitioner’s. (See
Sentencing Tr. [Docket 177-3], at 3-6). The petitioner’s counsel addressed the letter and stated:
I sat down with [Mr. Byrd] to review again the plea agreement, what it means to
proceed with a [§924](c) plea, and that there is, in fact, no flexibility on the number
in the manner in which he suggested. So we did have the opportunity to discuss
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that. He understands that and what the sentence will be today, assuming the Court
accepts the recommendations of the government and counsel for Mr. Byrd . . . .
Mr. Byrd is relatively young. I think that it was very difficult for him, when faced
with the opportunity to accept a plea of 40 years, to get his mind around what that
amount of time really means for someone who has not yet lived 30 years, to
voluntarily give up their right to trial, which may contain at least some theoretical
hope for acquittal, is a difficult thing to do. And that was a time consuming and
exacting process where we worked with Mr. Byrd to counsel him to fully
appreciate his likelihood of success or lack thereof at trial, and also to think about
what his life will be like over the ensuing decades, and the difference between
going into prison as someone who knows that some day they’ll be able to walk out
versus someone who walks in knowing that that is never a possibility.
(Sentencing Tr. [Docket 177-3], at 4:5-13, 6:9-21). At the sentencing hearing, the prosecution
stated, “I can tell you and the Court and Mr. Byrd on the record that in the event that there were[]
some sentence lower than 40 years imposed, the government would exercise its option to
withdraw . . . from the plea agreement, and that would put [Mr. Byrd] in a position, of course, that
would be substantially more serious than when [sic] he’s even facing now.” (Id. at 4:18-23).
The court gave the petitioner the opportunity to speak on the record before he was
sentenced. The petitioner spoke before he was sentenced, but at no point did the petitioner object to
the forty-year sentence or state that he had been told by counsel that he would not receive more
than twenty-five years imprisonment. (See id. at 8:15-20).
There is nothing in the record to support Mr. Byrd’s claim that he was informed by counsel
that he would not receive more than twenty-five years imprisonment. Indeed, the record is replete
with references to the forty-year sentence agreed to by the parties. The petitioner signed the Plea
Agreement, which clearly stated that he was agreeing to a recommended sentence of forty years
imprisonment. Additionally, the petitioner had many opportunities at the rearraignment and the
sentencing hearings to object when the court discussed the forty-year sentence, but he did not. In
order to establish prejudice, the petitioner must demonstrate that had he been properly informed of
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the forty-year sentence by his attorney, he would have proceeded to trial. See United States v.
Foster, 68 F.3d 86, 88 (4th Cir. 1995). The petitioner cannot establish prejudice. Even if the
petitioner’s counsel improperly informed him that he would not receive a sentence of more than
twenty-five years, that error “was corrected by the trial court at the Rule 11 hearing, and thus [the
petitioner] was not prejudiced.” Id. at 88. In United States v. Foster, the petitioner argued that if his
counsel had properly informed him that he could be sentenced as a career offender, he would not
have pleaded guilty. See id. at 87-88. The Fourth Circuit found that there could be no prejudice
because the trial court properly informed the defendant of his potential sentence at the Rule 11
hearing. See id. at 88. The court found that “even if Foster’s trial counsel provided Foster incorrect
information about sentencing, Foster was in no way prejudiced by such information given the trial
court’s careful explanation of the potential severity of the sentence.” Id.
The same is true in this case. Even if the petitioner’s counsel improperly informed him of
the agreed-upon sentence, which there is no evidence in the record to support, the court
nonetheless corrected such an alleged error by repeatedly informing the petitioner that the Plea
Agreement contained an agreed sentence of forty years. I therefore FIND that the petitioner cannot
establish prejudice in his ineffective assistance of counsel claim regarding the forty-year sentence.
B. Facts Triggering Minimum Mandatory Sentence
The petitioner also argues that the district court erred by imposing a sentence beyond the
mandatory minimum of sixty months “without [Byrd] admitting to the element or a jury finding
him guilty of the element beyond a reasonable doubt.” (Petition [Docket 165], at 5). First, the
government properly notes that pursuant to 18 U.S.C. § 924(c)(1)(A)(iii), the minimum mandatory
sentence for Mr. Byrd was ten years, not sixty months, because the petitioner admitted in the Plea
Agreement and at the Rule 11 colloquy that the firearm he used to murder Mr. Callaway was
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discharged in furtherance of a crime of violence. See 18 U.S.C. § 924(c)(1)(A)(iii) (“Except to the
extent that a greater minimum sentence is otherwise provided by this subsection or by any other
provision of law, any person who, during and in relation to any crime of violence . . . for which the
person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided
for such crime of violence . . . if the firearm is discharged, be sentenced to a term of imprisonment
of not less than 10 years.”).
Although the petitioner’s exact argument is unclear, it appears the petitioner is arguing that
he did not stipulate to the facts necessary to support a conviction of more than the minimum
sentence allowed under 18 U.S.C. § 924(c). However, the superseding indictment alleged, and the
petitioner stipulated, that the petitioner discharged a firearm during a crime of violence. Therefore,
the maximum sentence the petitioner could have received was life imprisonment. See, e.g., United
States v. Johnson, 507 F.3d 793, 798 (2d Cir. 2007) (finding that “the maximum sentence under
[18 U.S.C. § 924(c)(1)(A)] is life imprisonment” and collecting cases regarding same). The parties
agreed to, and the court imposed, a sentence of forty years, less than the maximum possible
penalty of life imprisonment. Additionally, unlike other statutes, 18 U.S.C. § 924(c) does not
require that specific facts be proven in order for a higher sentence to apply. See 18 U.S.C. § 924; cf.
21 U.S.C. § 841 (setting forth specific quantities of drugs to provide for higher statutory maximum
sentences). I therefore FIND that the court did not err in imposing the agreed-upon sentence of
forty years.
C. Federal Nexus
The petitioner asserts that the court lacked jurisdiction over the indictment because the
petitioner’s “alleged criminal conduct [occurred] within the state of Maryland and did not [affect
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interstate] commerce.” (Petition [Docket 165], at 5). The superseding indictment alleged that the
defendant committed four crimes of violence in violation of 18 U.S.C. § 1958 and 18 U.S.C. §
1512(a)(1)(C), including murder for hire. As the Fourth Circuit has noted, “all of the circuits to
address the question” of whether Congress was within its power to enact the murder-for-hire
statute under the Commerce Clause have found that “Congress’s enactment of the murder-for-hire
statute . . . did not exceed its authority under the Commerce Clause.” United States v. Runyon, 707
F.3d 475, 489 (4th Cir. 2013). Additionally, in the stipulation of facts contained in the Plea
Agreement, the petitioner stipulated that he used cellular phones to prepare to commit the murder.
(See Stipulated Factual Statement to Supp. Guilty Plea to Count Five of the Superseding
Indictment [Docket 57-1], at 4-6). “[I]t is well established that cellular phones are instrumentalities
of interstate commerce.” Salsbery v. Verizon Wireless (VAW), LLC, No. 2:13-CV-26419, 2014
WL 3876635, at *4 (S.D. W. Va. Aug. 7, 2014) (citing United States v. Evans, 476 F.3d 1176,
1180 (11th Cir. 2007); United States v. Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997)). I therefore
FIND that the court properly exercised jurisdiction over the superseding indictment.
D. Allegedly Deficient Indictment
In his reply, the petitioner argues that Count Five of the superseding indictment was
deficient because it “charges multiple underly[ing] predicate offenses in a single count,” and that
his counsel was ineffective for failing to object to that error. (See Reply [Docket 180], at 14). The
petitioner relies upon United States v. Castano, 543 F.3d 826 (6th Cir. 2008) to support his
argument. In Castano, the defendant argued that there were errors in the jury instructions and
verdict form during his trial. See 543 F.3d at 832. The defendant was convicted of “possession of a
firearm during a drug trafficking crime” in violation of 18 U.S.C. § 924(c). Id. at 834. However,
the Sixth Circuit had recognized 18 U.S.C. § 924(c) as criminalizing two distinct offenses: “a use
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or carriage offense which has during and in relation to as its standard of participation,” and “a
possession offense, which has in furtherance of’ as its standard of participation.” Id. at 832
(internal quotation marks omitted). The jury instructions, however, referred to “the crime of
possession of a firearm during a drug trafficking crime.” (Id. at 834) (emphasis added by court).
The court found that the jury instructions “impermissibly authorized a conviction of a non-existent
offense, which in this case was that of possessing a firearm simply during a drug trafficking
offense.” Id. at 836.
In the instant case, the superseding indictment, unlike the jury instructions in Castano,
alleged that the petitioner “did knowingly use, carry and discharge a firearm during and in relation
to crimes of violence[.]” (Superseding Indictment [Docket 16], at 11). The Plea Agreement further
stated that “the defendant knowingly used and discharged a firearm during and in relation to”
crimes of violence, in violation of 18 U.S.C. § 924(c). (Plea Agreement [Docket 57], at 2). The
Supreme Court has determined that Ҥ 924(c)(1) requires evidence sufficient to show an active
employment of the firearm by the defendant, a use that makes the firearm an operative factor in
relation to the predicate offense.” Watson v. United States, 552 U.S. 74, 76-77 (2007). Here, the
superseding indictment alleged, and the petitioner pleaded guilty to, discharging a firearm during
and in relation to a crime of violence. Discharge of a firearm is certainly enough to demonstrate
“active employment of the firearm by the defendant.” Id. I therefore FIND that the indictment was
not defective, and therefore the petitioner cannot demonstrate ineffective assistance of counsel due
to the allegedly defective indictment.
E. Certificate of Appealability
The court additionally has considered whether to grant a certificate of appealability. See 28
U.S.C. § 2253(c). A certificate will not be granted unless there is “a substantial showing of the
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denial of a constitutional right.” Id. § 2253(c)(2). 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). For the reasons explained above, the court concludes that the
governing standard is not satisfied in this instance. Accordingly, the court DENIES a certificate of
appealability.
IV.
Conclusion
For the reasons set forth above, Petitioner Bruce Eric Byrd’s Motion to Vacate Sentence
[Docket 165] is DENIED. The court DIRECTS the Clerk to send a copy of this Order to counsel
of record and any unrepresented party.
ENTER:
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August 20, 2014
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