Tyson v. USA - 2255

Filing 3

MEMORANDUM. Signed by Chief Judge Catherine C. Blake on 11/18/2015. (c/m)(hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DEXTER BERT TYSON

v.

UNITED STATES OF AMERICA

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Civil No. CCB-13-2919
(Criminal No. CCB-03-0056)

MEMORANDUM
Now pending is Dexter Bert Tyson’s (“Tyson”) motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. Tyson originally went to trial in June 2004, but was granted a
new trial based on the perjured testimony of a government witness. On October 13, 2005, Tyson
was convicted by a jury on eight counts of drug and firearms charges. On December 29, 2005,
Tyson filed a motion for a new trial. On January 13, 2006, this court denied the motion for a new
trial and sentenced Tyson to life imprisonment. On July 27, 2007, while an appeal to the Fourth
Circuit was pending, Tyson filed another motion for a new trial. On December 1, 2009, this court
denied that request. On February 1, 2012, Tyson’s convictions and sentence were affirmed by the
Fourth Circuit. United States v. Tyson, 462 F. App’x 402 (4th Cir. 2012); (ECF No. 290.) Tyson
now raises nine grounds to justify relief from his sentence under 28 U.S.C. § 2255, and brings a
separate motion seeking discovery. For the reasons stated below, Tyson’s motions will be
denied.
ANALYSIS
Tyson raises several grounds in his § 2255 motion, none of which justify relief from his
conviction and sentence. The court will address each in turn.
Ground One:

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Tyson first argues that prosecutorial misconduct in offering the false testimony of Anne
Arundel County Detective William Caputo (“Caputo”) justifies relief. In particular, Tyson
alleges that Caputo stated he surveilled Tyson on dates when Tyson was actually incarcerated,
and that Caputo’s December 6, 2002, report referenced in the search warrant affidavit was false,
because it included a case number that was not assigned until after that date and information
about record checks that Caputo ran after that date. A defendant may not relitigate issues
previously rejected on direct appeal under the guise of a collateral attack.1 See United States v.
Dyess, 730 F.3d 354, 360 (4th Cir. 2013) (quoting United States v. Linder, 552 F.3d 391, 396
(4th Cir. 2009)). Here, the Fourth Circuit affirmed Tyson’s convictions and explicitly rejected
the arguments regarding the surveillance and record checks. (4th Cir. Op. 13, 15-16.) Further,
this court has held on multiple occasions that any discrepancies in the dates from Caputo’s
testimony or reports are not material, (see, e.g., Gov’t Resp. Opp’n Ex. 2, Dec. 1, 2009, Mem.,
ECF No. 316-2; id. Ex. 5, Jan. 13, 2006, Transcript, ECF No. 316-5), and the Fourth Circuit
agreed that, “even assuming that Caputo’s affidavit was intentionally false and misleading” – for
which Tyson has offered no proof – “probable cause would still have existed,” (4th Cir. Op. 15).
Tyson has provided no information in his § 2255 motion to suggest prosecutorial misconduct, or
to justify his request for additional information about the confidential information Caputo used.
Relief on this ground will be denied.
Ground Two:
Tyson next argues that he suffered a due process violation when the Anne Arundel
County Police Department disregarded its internal policies by allowing Caputo to intentionally
file a false report. Tyson did not raise this argument on direct appeal. By not raising it on direct

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Although Tyson styles this argument as one of prosecutorial misconduct, and in the appeal it was targeted at this
court’s denial of a Franks hearing, see Franks v. Delaware, 438 U.S. 154 (1978), the content of the two arguments
are identical.

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appeal, and by failing to demonstrate cause and prejudice or his actual innocence, the argument
is waived. See United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999). Even if it
were not waived, and even if Tyson could show that Caputo intentionally made false statements,
the argument fails because, as the government points out, a violation of the Police Department’s
internal procedures, standing alone, does not infringe upon Tyson’s constitutional rights. United
States v. Caceres, 440 U.S. 741, 754-55 (1979) (rejecting judicial enforcement of agency
regulations by means of the exclusionary rule where no constitutional rights of the defendant
have been violated). Here, Tyson cannot show either a violation of Department policies or that
his constitutional rights were infringed. Therefore, he is not entitled to relief on this ground.
Ground Three:
Tyson’s third argument in support of his § 2255 motion is that the government violated
Brady v. Maryland, 373 U.S. 83 (1963), by suppressing evidence about Caputo’s allegedly false
testimony. This particular argument is waived because it was not raised on direct appeal, and
Tyson has not shown cause and prejudice or his actual innocence. Mikalajunas, 186 F.3d at 49293. Even if it were not waived, Tyson cannot establish a Brady violation. To  prove a Brady
violation, a defendant must show that the evidence was (1) favorable to the defendant, (2)
material, and (3) that the prosecution had the evidence and failed to disclose it. See Moore v.
Illinois, 408 U.S. 786, 794-95 (1972); United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001).
Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.” United States v. Bagley, 473
U.S. 667, 682 (1985). Here, the relevant evidence was not material; this court and the Fourth
Circuit found that probable cause still would have existed to support the search warrant without
the misstatements. (4th Cir. Op. 15.) Further, Caputo’s report was produced. Because Tyson

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cannot meet two of the three requirements necessary to prove a Brady violation, the requested
relief will be denied.
Ground Four:
Tyson next alleges that his counsel was ineffective for failing to lodge the proper
objection to the government’s use of forfeiture claims filed by Tyson with the Drug Enforcement
Agency (“DEA”) seeking the return of over $55,000 seized on January 9, 2003. Tyson may raise
an ineffective assistance of counsel claim for the first time in a § 2255 motion, whether or not he
could have raised the claim on direct appeal. Massaro v. United States, 538 U.S. 500, 504
(2003). To sustain a claim for ineffective assistance of counsel, a petitioner must satisfy the twopronged test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687
(1984). First, the petitioner must show “counsel's representation fell below an objective standard
of reasonableness.” Id. at 688. In evaluating such conduct, there is “a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
Second, “[t]he defendant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Here,
Tyson acknowledges that his counsel objected to the introduction of the DEA claims, as Tyson
suggested. (Mem. Supp. Mot. Vacate 11, ECF No. 310.) Tyson now argues that, instead of (or,
perhaps, in addition to) objecting on evidentiary grounds, counsel should have objected that
admitting the claims violated Tyson’s Fifth Amendment rights, an argument his counsel raised
on appeal. First, as noted in its opinion, the Fourth Circuit has not addressed whether it would
violate a defendant’s Fifth Amendment rights to introduce in a criminal case a previous
statement by him claiming an interest in property made in order to receive a forfeiture hearing.
(4th Cir. Op. 9.) Tyson’s representation, therefore, did not fall below an objective standard of

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reasonableness when his counsel did not object on grounds of law undecided in this Circuit.
Further, even if Tyson could meet the first prong of the Strickland test, the exclusion of the
evidence would not have changed the outcome of the proceedings, given that the Fourth Circuit
found there to be “a wealth of evidence tying Tyson to the apartment, and by extension, the cash
and the drugs.” (Id.) As a result, this claim fails.
Ground Five:
Tyson next argues that his counsel was ineffective for failing to introduce evidence about
the alleged unreliability of the police K-9 that gave a positive alert on a white van, helping to
establish the probable cause necessary to search the apartment at 411 Raindrop Court. According
to Tyson, counsel obtained evidence about the K-9’s unreliability but failed to use that
information to challenge the probable cause finding for the search warrant. (Mem. Supp. Mot.
Vacate 12.) As an initial matter, Tyson acknowledges that his attorney in fact questioned the
value of the K-9 alert for establishing probable cause, arguing during the pre-trial stages of this
case that a positive alert does not necessarily mean drugs were present. (Id.) Further, counsel
must be given “wide latitude . . . in making tactical decisions,” and “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 689, 690. Tyson’s attorney investigated the reliability
of the K-9 at issue and apparently decided not to introduce the evidence Tyson identifies. This
decision was not unreasonable; counsel may have thought the additional information did not add
anything to his initial objections, did not in fact support a conclusion that the K-9 was unreliable,
or did not help his client (if, for example, the dog gave too many negatives, as Tyson argues).
Finally, even if counsel’s decision was unreasonable and objecting to the K-9 alert would have
resulted in its suppression, the result of the proceeding would have been no different. This court

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has held on several occasions that there was “ample” probable cause in the 411 Raindrop Court
search warrant affidavit. (Dec. 1, 2009, Mem. 1; Jan. 13, 2006, Transcript 33.) Indeed, as the
government points out, there is significant case law to support a finding of probable cause solely
on the basis of a trash pull that tests positive for drugs and connects the defendant to the trash.
See, e.g., United States v. Montieth, 662 F.3d 660, 665 (4th Cir. 2011) (finding that probable
cause existed based on “the considerable evidence of drug trafficking discovered in the trash
pull, and the information linking the drug trafficking materials to [the defendant] and his
residence”); United States v. Gary, 528 F.3d 324, 326, 328-29 (4th Cir. 2008) (finding that
probable cause existed when a police officer found two plastic bags containing white powder
residue, and materials often used for packaging narcotics, in trash bags sufficiently connected to
the relevant residence). Tyson is not entitled to relief on this ground.
Ground Six:
Tyson also argues that his attorney was ineffective because he failed to appeal the district
court’s exclusion of the Data Extraction Sheet compiled by the Maryland Motor Vehicle
Administration (“MVA”) that showed Caputo in fact did not check records until after the date of
his investigative report. This argument also fails. As an initial matter, Tyson’s counsel was not
required to raise all issues on appeal. Keel v. French, 162 F.3d 263, 272 (4th Cir. 1998)
(“[A]ppellate counsel is not required to raise an issue on appeal merely because it is not
frivolous.”). Given that Tyson’s counsel unsuccessfully objected in 2006 to the suppression of
evidence that identified the sequencing issues with Caputo’s report and record checks, (Jan. 13,
2006, Transcript 32-33), it was not unreasonable for him not to raise the issue on appeal. Further,
although Tyson’s counsel did not appeal this court’s suppression of the Data Extraction Sheet, he
did appeal its determination that the information regarding the dates of the MVA record checks

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did not warrant a Franks hearing. (See 4th Cir. Op. 15.) As stated above, the Fourth Circuit held
that “the incorrect dates appear to be nothing more than misstatements or mistakes,” and
probable cause still would have existed to support the search warrant even without the alleged
misstatements. (Id.) Tyson has not established that his counsel was ineffective for failing to
appeal this court’s suppression of the Data Extraction Sheet.
Ground Seven:
Tyson also argues that counsel was ineffective for failing to investigate or call Brent
Pariag (“Pariag”), Tyson’s brother, as a defense witness. Tyson has submitted an affidavit signed
by Pariag, in which Pariag avers that he obtained a driver’s license using, and opened a bank
account and several credit cards in, Tyson’s name; found a job and paid taxes for this job using
his brother’s name; rented an apartment at 1428 Church Street in Tyson’s name; purchased a
black Honda Accord in Tyson’s name and registered it to the Church Street address; paid the
bills for the 411 Raindrop Court apartment in his brother’s name; and owned the receipts and
other items in Tyson’s name that were found during the search of the apartment at 411 Raindrop
Court. (Mot. Correct Scrivener’s Error Ex. 2, Pariag Aff. 1, ECF No. 313-2.)2 Tyson’s attorney
did not call Pariag at trial. Instead, he called Brandy Scott Brown (“Scott Brown”), the mother of
Tyson’s daughter, (Gov’t Resp. Opp’n Ex. 7, Scott Brown Transcript, ECF No. 316-7), and Veda
Scott (“Scott”), Scott Brown’s grandmother, (Gov’t Resp. Opp’n Ex. 8, Brown Transcript, ECF
No. 316-8). Scott Brown testified that Tyson owned a black Honda Accord, (Scott Brown
Transcript 103), and rented an apartment at 411 Raindrop Court, (id. at 109). She also testified
that the Accord was locked in her grandmother’s garage from September 2002 to December 9,

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Tyson did not include his or Pariag’s affidavit as an exhibit to his memorandum in support of his motion to vacate.
Tyson has submitted these affidavits separately in what is styled as a motion to correct scrivener’s error. (ECF No.
313.) Because the government does not appear to contest the submissions, the court will assume without deciding
that the affidavits may be included as part of the record.

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2002, and that she was the sole possessor of the car keys during this time period. (Id. at 108.)
Scott testified that the Accord was stored in the garage for that entire period, and that only she
had a key to the garage. (Scott Transcript 148, 152.) The import of this information was to
contradict investigator testimony that Tyson left the Raindrop Court apartment and entered the
Honda Accord on December 2, 2002, because the car was in Scott’s garage – and Tyson was
incarcerated – on December 2, 2002.
An attorney’s representation may be deficient “when he failed to contact and interview
important prospective witnesses, especially when they were readily available or had been
identified by the defendant prior to trial.” Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir. 1998).
“Although ‘a lawyer’s failure to investigate a witness who has been identified as crucial may
indicate an inadequate investigation, the failure to investigate everyone whose name happens to
be mentioned by the defendant does not suggest ineffective assistance.’” Id. (quoting Gray v.
Lucas, 677 F.2d 1086, 1093 n.5 (5th Cir. 1982)). Moreover, the decision whether to call a
defense witness is a strategic decision, demanding counsel’s “assessment and balancing of
perceived benefits against perceived risks,” to which courts should afford “enormous deference.”
United States v. Terry, 366 F.3d 312, 317 (4th Cir. 2004) (internal quotation marks omitted). As
an initial matter, it appears that Tyson’s counsel did consider calling Pariag as a witness: he is
listed fifth on the defendant’s proposed witness list. (Mem. Supp. Mot. Vacate Exs. 77, Def.’s
Proposed Witness List, ECF No. 310-2.) Further, several legitimate reasons exist for why
Tyson’s counsel ultimately decided not to call Pariag. Tyson’s counsel reasonably could have
concluded that trying to establish through the testimony of Scott Brown and Scott that Tyson was
not in possession of the Honda Accord at the time of the police surveillance was a more effective
tactic than advancing a sweeping claim by Pariag that everything in Tyson’s name actually

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belonged to him. Further, calling Pariag as a witness would have contradicted Scott Brown’s
claims that Tyson owned the Honda Accord and rented the apartment at 411 Raindrop Court.
Considering credibility, Pariag would have had to admit that he submitted false MVA forms and
lied on his tax returns. And Pariag did not take responsibility for the drugs in his affidavit, even
though he is now serving a sentence for possession with intent to distribute cocaine base. United
States v. Pariag, No. 05-0374 (D. Md. Feb. 10, 2006). This combination of potentially
conflicting testimony and the credibility issues inherent in Pariag’s testimony, along with the
strong presumption that counsel’s conduct fell within the range of reasonable professional
assistance, demonstrates that counsel’s decision not to further investigate or call Pariag did not
render his representation constitutionally deficient. Tyson is not entitled to relief on this claim.3
Ground Eight:
Next, Tyson argues that this court made factual findings in sentencing him to life
imprisonment in violation of Alleyne v. United States, 133 S. Ct. 2151 (2013), in which the
Supreme Court held that any fact that increases a mandatory minimum sentence for a crime is an
element of the crime that must be submitted to the jury. This argument does not withstand
scrutiny. Counts I and II of the indictment charged Tyson with offenses that carried mandatory
sentences of life imprisonment given his prior convictions for felony drug offenses.4 (Gov’t

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Under 28 U.S.C. § 2255, a hearing is required unless it is clear from the motions, files, and records that the movant
is not entitled to relief. 28 U.S.C. § 2255(b). When a movant presents a colorable Sixth Amendment claim, and
where material facts are in dispute involving inconsistencies beyond the record, an evidentiary hearing is required.
See United States v. Magini, 973 F.2d 261, 264 (4th Cir. 1992). Nonetheless, the two affidavits that Tyson submitted
do not necessitate a hearing. For the reasons described above, Tyson would not be entitled to relief even assuming
his allegations were true as a result of the deference given to counsel regarding trial strategy and the multiple issues
raised by Pariag’s proposed testimony.
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The jury found Tyson guilty of, inter alia, conspiring to distribute and possess with intent to distribute, and
possessing with intent to distribute, fifty grams or more of cocaine base. (Gov’t Resp. Opp’n Ex. 9, Jury Verdict
Form, ECF No. 316-9.) Before passage of the Fair Sentencing Act of 2010 (“FSA”), 124 Stat. 2372, these
convictions resulted in a mandatory term of life imprisonment for defendants, like Tyson, with two or more felony
drug convictions. Because Tyson was sentenced before 2010, he is not eligible for relief under the FSA. See Dorsey
v. United States, 132 S. Ct. 2321, 2331 (2012) (holding that the FSA’s new, lower mandatory minimums apply only
to the post-Act sentencing of pre-Act offenders); United States v. Black, 737 F.3d 280, 282, 284-85 (4th Cir. 2013)

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Resp. Opp’n Ex. 1, Indictment, ECF No. 316-1.); see also 21 U.S.C. § 841(a)(1) (2006); 21
U.S.C. § 846. As required by 21 U.S.C. § 851(a)(1), the government filed an information listing
the prior felony drug convictions on which it sought to rely. Because prior convictions are not
treated as elements of the offense, the § 851 notice does not bring this case within the scope of
Alleyne. See Alleyne, 133 S. Ct. at 2160 n.1 (stating that the Court was not revisiting
Almendarez-Torres v. United States, 523 U.S. 224 (1998)); United States v. Surratt, 797 F.3d
240, 248 (4th Cir. 2015) (noting that prior convictions are not treated as elements of an offense).
Therefore, Alleyne does not entitle Tyson to relief.
Ground Nine:
Tyson attached a handwritten note to his motion to vacate that offers a final ground in
support of his § 2255 motion. In particular, he alleges his counsel was ineffective for failing to
raise on appeal the sufficiency of the evidence of Counts I, II, and V. (Mot. Vacate 9B, ECF No.
307.) As stated above, in evaluating whether counsel’s representation fell below an objective
standard of reasonableness, there is “a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Tyson’s counsel
adequately represented him. He three times brought motions for a new trial – the first one was
successful – and appealed his client’s guilty verdict to the Fourth Circuit. Tyson’s attorney raised
five issues on appeal. Which issues to raise on appeal is properly left to the determination of
counsel, see Keel, 162 F.3d at 272, and counsel should be strategic in making this determination.
In its opinion, the Fourth Circuit stated that there was “a wealth of evidence” tying Tyson to the
evidence in this case, (4th Cir. Op. 9), and there is no indication that the decision by Tyson’s
attorney not to challenge the sufficiency of the evidence was anything but tactical. Tyson cannot

(concluding that the statutory minimum sentences in the FSA do not apply to a defendant sentenced before the Act’s
effective date).

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meet the first element of the Strickland test requiring him to demonstrate that his counsel’s
representation fell below an objective standard of reasonableness.
Motion Seeking Discovery
Tyson also moves under the rules governing § 2255 proceedings for leave to seek
discovery to support his petition. Rule 6(a) instructs that a court may authorize a party to conduct
discovery for “good cause,” and good cause exists “where specific allegations before the court
show reason to believe that the petitioner may, if the facts are fully developed, be able to
demonstrate that he is . . . entitled to relief.” Bracy v. Gramley, 520 U.S. 899, 908-09 (1997)
(alteration in original) (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). Tyson’s motion
seeking discovery, which rehashes many of the arguments he makes in his § 2255 petition, does
not present good cause. Therefore, his motion will be denied.
Certificate of Appealability
An inmate who files a motion to vacate has no absolute entitlement to appeal a district
court's denial of his motion. See 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. §
2253(c)(2). The defendant “must demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to proceed further,’” Miller–El v. Cockrell,
537 U.S. 322, 336 (2003) (quoting Slack, 529 U.S. at 484). Tyson has not made the required
showing and the court declines to issue a certificate of appealability.
CONCLUSION

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For the reasons stated above, Tyson’s motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255 will be denied, and a certificate of appealability will not issue. His
motion seeking discovery will be denied. A separate order follows.

November 18, 2015

/s/

Date

Catherine C. Blake
United States District Judge

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