Holness v. USA-2255

Filing 2

MEMORANDUM. Signed by Judge William M Nickerson on 3/27/2017. (c/m 3/27/17 bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA
v.
RYAN HOLNESS
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Civil No. WMN-14-3072
Criminal No. WMN-09-0611

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MEMORANDUM
Before the Court is a Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence filed by Defendant Ryan
Holness.

ECF No. 132.

Because the pleadings, files, and

records conclusively show that Petitioner is not entitled to
relief, the Court concludes that an evidentiary hearing is not
necessary, United States v. Diaz, 547 Fed. Appx. 303, 304 (4th
Cir. 2013) (citing United States v. Witherspoon, 231 F.3d 923,
925–27 (4th Cir. 2000)), and the motion will be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
After a ten day jury trial, Defendant was convicted of
three counts of the four count Second Superseding Indictment;
Count One – Interstate Domestic Violence in violation of 18
U.S.C. § 2261; Count Two – Obstruction of Justice in violation
of 18 U.S.C. § 1512(c)(2); and Count Three – Attempted Witness
Intimidation in violation of 18 U.S.C. § 1512(b)(1).1

1

Prior to

Count Four, for Passport Fraud, was severed prior to trial and
was subsequently dismissed on a motion by the United States.

sentencing, the Court granted a new trial as to Count Two, after
which, the government advised it would dismiss that count.

On

June 9, 2011, the Court sentenced Defendant to life imprisonment
as to Count One and to a term of 20 years as to Count Three, to
be served concurrent to the sentence for Count One.

Defendant’s

conviction and sentence were affirmed on appeal on February 11,
2013.

United States v. Holness, 706 F.3d 579 (4th Cir. 2013).

The Supreme Court denied certiorari on October 7, 2013, and
Defendant filed his timely motion to vacate on September 29,
2014.
In its opinion affirming Defendant’s conviction and
sentence, the Fourth Circuit set out in significant detail the
overwhelming evidence presented to the jury and on which the
jury based its finding of guilt.

706 F.3d at 579-88.

level of detail will not be repeated here.

That

Briefly stated,

however, the facts relevant to the instant motion are as
follows.

Early in the morning of June 5, 2009, on Maryland’s

Eastern Shore, Defendant murdered his wife, Serika Dunkley, by
stabbing her and leaving her in a field.

Defendant attempted to

make the murder appear to be the result of a carjacking by
giving himself a superficial stab wound and by taping himself up
with duct tape.

Defendant had an accomplice, Dellando Recardo

Campbell, who had traveled from New York City with Defendant and
Ms. Dunkley and who then proceeded to drive Defendant’s car to
2

Washington, D.C. to abandon it there so that it would later be
found by the police.2

After allowing sufficient time for

Campbell to drive the car to D.C., Defendant knocked on the door
of a nearby house and reported that he had been carjacked,
knocked unconscious, and his wife had been stabbed and left in a
nearby field.

The residents of the house called 911.

A Kent County Deputy Sheriff and Maryland State Troopers
arrived at the scene and interviewed Defendant.

Defendant was

transported to a local hospital for treatment and, later that
morning, was taken to a Maryland State Police Barracks where he
was interviewed by two members of the Maryland State Police
homicide unit, Sergeant Stephen Hall and Sergeant Michael Smith.
While they were interviewing Defendant, another officer arrived
at the scene with a bloodhound which was used to trace
Defendant’s path.

The path traced by the bloodhound was

inconsistent with Defendant’s version of events.

While

Defendant claimed that, after regaining consciousness, he
travelled north to the house from which the 911 call was made,
the path traced by the bloodhound indicated that Defendant first

2

Years later, Campbell was apprehended, indicted, and ultimately
entered a guilty plea in this Court for Interstate Domestic
Violence Resulting in the Death of a Spouse and was sentenced to
a 360 month term of imprisonment. United States v. Campbell,
Crim. No. 14-058 (D. Md.).
3

went south from the crime scene to the front and back doors of a
modular home and then to a bridge over the Chester River.
Sergeants Hall and Smith returned with Defendant to the
crime scene and Defendant essentially repeated his earlier
story.

Evidence developed in the investigation, however,

further undermined Defendant’s version of events.

The resident

of the modular home south of the crime scene reported that
someone knocked on her front and back doors at the time
Defendant would have been unconscious and a witness reported
seeing a man matching Defendant’s description near the bridge.
Furthermore, Defendant’s wounds and the physical evidence found
on Defendant’s person (and evidence not found which should have
been found) were inconsistent with his version of events.3
Defendant was placed under arrest.
On July 2, 2009, a Maryland state grand jury indicted
Defendant, charging him with first-degree and second-degree
murder.

For a period of time, Defendant was held in a county

detention center with a cellmate, Stephen McGrath.

On August

18, 2009, McGrath sent a letter to the Kent County prosecutor
stating that Defendant had told him “some interesting stuff

3

Other incriminating evidence was subsequently developed. An
examination of a personal computer recovered from Defendant’s
apartment revealed that, less than a week before the alleged
carjacking, someone searched for Apex and Greyhound bus
schedules for stops near where Defendant’s car was recovered in
Washington.
4

which led [McGrath] to believe [Defendant] actually killed his
wife.”

After relating some of that information, McGrath ended

the letter with the post script, “[i]n short he killed his wife
cause she found out he was cheating . . . .”

Sergeant Hall met

with McGrath on August 31, 2009, and McGrath clarified that
Defendant had never made a specific admission of murdering his
wife but the post script was just McGrath’s interpretation of
the information given to him by Defendant.

Sergeant Hall

instructed McGrath that he could reinitiate contact with
Defendant should Defendant volunteer additional information, but
cautioned him not to ask Defendant any direct questions.
Shortly thereafter, Defendant asked McGrath to help him
write a letter which would purport to be from the carjacker
expressing remorse.

The letter would be delivered to the

Washington Post for the purpose of giving the impression that
the carjacker was still at large and was to be handwritten by
McGrath so as not to implicate Defendant.

McGrath relayed the

plan to Sgt. Hall and Sgt. Hall provided McGrath with a
recording device that McGrath kept hidden in his pillow.

On

October 1, 2009, McGrath provided Sgt. Hall with one page of a
draft of a letter prepared by Defendant and a recording of the
contents of the remainder of that letter.

Sgt. Hall used that

information to obtain a search warrant of Defendant’s cell and

5

the search recovered an initial draft of the letter in McGrath’s
handwriting.
McGrath was released from custody on October 10, 2009.4
Shortly thereafter, Defendant was placed in solitary confinement
after he was found in possession of a shank.

On the wall of his

new cell, Defendant scrawled, “Stephen Scott McGrath, rat
snitch” along with McGrath’s home address and telephone number.
Defendant’s scrawling of this on the wall of his cell was the
basis of the attempted witness intimidation charge.
On October 13, 2009, Sergeant Hall met with representatives
of the United States Attorney’s office to explore the
possibility of transferring the case for prosecution.

The

discussion proved fruitful and, on November 24, 2009, a federal
grand jury returned an indictment against Defendant for
Interstate Domestic Violence.

Six days later, the state charges

against Defendant were dropped.

On March 1, 2011, the operative

Second Superseding Indictment was filed.

At the trial, McGrath

gave testimony about what Defendant had related to him about the
events of June 5, 2009, and about the drafting of the sham
letter.

McGrath also testified that Defendant told him that he

had thrown the murder weapons into the Chester River.

4

McGrath had made some effort to use his cooperation to
negotiate a shorter period of custody but was unsuccessful in
that effort. McGrath served his full sentence, minus good-time
credits.
6

In his original Motion to Vacate filed on September 29,
2014, Defendant raised three challenges to his conviction and
sentence.

First, Defendant argues that his trial counsel was

ineffective for failing to challenge the “federal nexus”
requirement of 18 U.S.C. § 1512(b)(1).

Second, Defendant

suggests that his due process rights were violated when he was
sentenced to a term of life imprisonment without parole based on
a factual finding made by the Court and not by the jury, in
violation of the rule announced in Apprendi v. New Jersey, 530
U.S. 466, 490 (2000) and Alleyne v. United States, 133 S. Ct.
2151 (2013).

Third, Defendant argues that the admission of

McGrath’s testimony about conversations and events that occurred
after McGrath met with Sgt. Hall violated his Sixth Amendment
rights, referencing Massiah v. United States, 377 U.S. 201
(1964).

With his § 2255 motion, Defendant also filed a “Motion

for Leave to File Amended Motion Pursuant to 28 U.S.C. § 2255,”
ECF No. 133, in which he indicated that, after the completion of
his review of the files and records, he would seek to amend his
motion to add a fourth ground which he presented simply as:
“because of a fraudulent marriage that is relevant to the issue
of Federal nexus under 18 U.S.C. § 2261(a)(1).”
On January 5, 2015, Defendant filed an additional pleading
stating that “Pertinent and Significant new case law” had come
to his attention that supports his second ground for relief,
7

citing Burrage v. United States, 134 S. Ct. 881 (2014).
137.

ECF No.

On January 29, 2015, Defendant submitted what he captioned

as an “Amendment to Placeholder Motion.”

ECF No. 138.

In that

pleading, Defendant asked that the Court “take judicial notice
that he is unable to obtain needed documents relating to a
‘fraudulent marriage’ (ground number four)” and asked that this
ground “be dismissed without prejudice so that if, and when, he
receives the necessary document he can re-instate the claim.”
Id. at 2.

Defendant also asked to conduct discovery, proffering

that “he has reason to believe that the jurisdictional nexus,
that is, a valid marriage in this case was not proven beyond a
reasonable doubt.”

Id. at 3-4.

He also suggests, without any

explanation, that “the Government may have failed to disclose
exculpatory and favorable evidence to Petitioner, relating to
Petitioner’s unindicted co-defendant Delando R. Campbell.”
at 4.

Id.

Finally in that pleading, Defendant argues that his

counsel was ineffective for failing to argue that Sgt. Hall was
not properly qualified as an expert to testify regarding cell
phone tracking.

Id. at 4-5.

After the Government filed its opposition to Defendant’s
motion, Defendant filed a brief reply memorandum on November 24,
2015.

ECF No. 145.

On February 10, 2016, Defendant filed a

“Motion Requesting Leave of the Court to Amend 28 U.S.C. § 2255
Pursuant to Rules of Civil Procedure, 15.”
8

ECF No. 146.

This

pleading purports to inform the Court of more “Pertinent and
Significant new case law,” citing Hurst v. Florida, 136 S. Ct.
616 (Jan. 12, 2016) and Montgomery v. Louisiana, 136 S. Ct. 718
(Jan. 25, 2016).

Defendant also suggested that Campbell’s plea

agreement gives further support to his Apprendi claim.

Finally,

on September 30, 2016, Defendant filed a “Notice of Subsequent
Authority,” this time directing the Court’s attention to the
Fourth Circuit’s decision in In re Hubbard, 825 F.3d 225 (4th
Cir. June 8, 2016).

ECF No. 147.

II. DISCUSSION
A. Alleged Ineffective Assistance: Failure to Challenge Federal
Nexus Requirement of 18 U.S.C. § 1512(b)(1)
Ineffective assistance of counsel claims under the Sixth
Amendment are examined under the two-prong test set forth in
Strickland v. Washington, 466 U.S. 668 (1984).

To succeed under

Strickland, a petitioner must show both that: (1) his attorney's
performance fell below an objective standard of reasonableness
and (2) he suffered actual prejudice.

Id. at 687.

The first

Strickland prong requires the petitioner to “‘show that
counsel's representation fell below an objective standard of
reasonableness' measured by ‘prevailing professional norms.’”
Lewis v. Wheeler, 609 F.3d 291, 301 (4th Cir. 2010) (quoting
Strickland, 466 U.S. at 688).

There is a “strong presumption

that counsel's conduct falls within the wide range of reasonable

9

professional assistance,” and “[j]udicial scrutiny of counsel's
performance must be highly deferential.”

Strickland, 466 U.S.

at 689.
The second prong of Strickland requires the petitioner to
show that counsel's errors were serious enough to deprive the
petitioner of a fair trial.

Strickland, 466 U.S. at 687.

In

essence, the petitioner must show “there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.

A

reasonable probability is a probability sufficient to undermine
confidence in the outcome.”

Id. at 694.

If it is clear the

petitioner has failed to satisfy either prong of the Strickland
standard, a court need not inquire into whether he satisfied the
other.

Id. at 697.

Defendant contends that “it was ineffective for trial
counsel not to contest the federal nexus requirement in 18
U.S.C. § 1512(b)(1) and require [a jury] instruction
necessitating nexus be established beyond of reasonable doubt.”
ECF No. 132-1 at 6.

Section 1512(b)(1) provides that “[w]hoever

knowingly uses intimidation, threatens, or corruptly persuades
another person, or attempts to do so, or engages in misleading
conduct toward another person, with intent to-- (1) influence,
delay, or prevent the testimony of any person in an official
proceeding;” shall be fined under this title or imprisoned not
10

more than 20 years, or both. 18 U.S.C. § 1512 (b)(1) (emphasis
added).

An “official proceeding” is defined as a “a proceeding

before a judge or court of the United States, a United States
magistrate judge, a bankruptcy judge, a judge of the United States
Tax Court, a special trial judge of the Tax Court, a judge of the
United States Court of Federal Claims, or a Federal grand jury.”
18 U.S.C. § 1515(a)(1)(A).

Thus, to violate § 1512(b)(1), a

defendant must be seeking to influence a federal proceeding.
Defendant asserts that, because he was only facing state charges at
the time the intimidating words were scrawled on his cell wall,
there was no federal nexus to this action.
To satisfy the federal nexus requirement, however, the federal
proceeding “need not be pending or about to be instituted at the
time of the offense,” 18 U.S.C. § 1512(f)(1), but it must be
forseeable.

Arthur Andersen LLP v. United States, 544 U.S. 696,

708 (2005);5 see also United States v. Kaplan, 490 F.3d 110, 125
(2nd Cir. 2007) (holding that a “knowingly ... corrupt persuader”

must believe that his actions are likely to affect a particular,
existing or foreseeable official proceeding”) (emphasis added).
Here, the government has identified numerous aspects of

5

Arthur Andersen addressed the “federal nexus” requirement in
different provisions of § 1512, § 1512(b)(2)(A) and (B). While
the Fourth Circuit has not had the occasion to apply Arthur
Andersen’s nexus requirement to charges under § 1512(b)(1),
other courts have, including the Second Circuit in Kaplan. This
Court will assume the applicability of Arthur Andersen’s federal
nexus analysis to Defendant’s conviction.
11

Defendant’s crime that would have made a federal prosecution
highly foreseeable.

Defendant was an active member of the

United States armed forces at the time of the crime and was
already under investigation for passport fraud.

The crime

involved transportation of the victim over state lines, the
transport into and abandonment of Defendant’s car in the
District of Columbia, and the intended use of the U.S. Mail to
send the letter of the purported remorseful carjacker.
Furthermore, the jury was instructed on the need to find a
federal nexus in the jury instructions and, in light of the
guilty verdict, of necessity found such a nexus.

The Court gave

the jury the following instructions:
[Section 1512 (b)(1)] is designed to protect persons
who are victims of federal crimes, persons who may be
called to testify or give evidence in a federal
proceeding, whether it's civil or criminal, and
persons who have information about federal crimes.
And the integrity of the federal system of justice
depends on the cooperation of such victims and
potential witnesses.
Now, in order to prove the defendant guilty of this
charge in Count Three, the government must prove the
following elements beyond a reasonable doubt: First,
that on or about the date charged, the defendant
knowingly used intimidation or threatened or corruptly
persuaded Steven McGrath, or attempted to do so, or
engaged in misleading conduct toward Steven McGrath;
secondly, that the defendant acted knowingly and with
the intent to influence or delay or prevent the
testimony of Steven McGrath in an official federal
proceeding.
Jury Instructions at 25-26 (emphasis added).
12

The Court explained further, ”the law does not require that
the federal proceeding be pending at the time of the attempted
intimidation, as long as the proceeding was foreseeable so that
the defendant knew that his actions were likely to effect that
proceeding.”

Id. at 27-28 (emphasis added).

Given that the

jury was charged with the same instruction that Defendant now
argues his counsel should have advanced and found Defendant
guilty after having been given that instruction, the Court finds
that Defendant has failed to satisfy either prong of the
Strickland standard.
B. Alleged Apprendi/Alleyne Violation
Defendant contends that the Interstate Domestic Violence
provision under which he was convicted, 18 U.S.C. § 2261(a)(1),
is facially unconstitutional under Apprendi and Alleyne.
No. 132-1 at 7.

ECF

He asserts that § 2261(a)(1) prescribes two

different terms of imprisonment, a lower term for “any term of
years” and an upper term of “life without parole,” and also
authorized the judge, and not the jury, to make the factual
finding to expose the defendant to that upper term.

Id. at 9.

Because the government argued at sentencing that a sentence of
life without parole was appropriate in light of the premeditated
and deliberate nature of Defendant’s actions, Defendant suggests
that this resulted in a sentence based upon a factual finding of
premeditation, a factual finding not made by the jury.
13

Defendant’s argument reflects a misunderstanding of the holdings
of Apprendi and Alleyne, of § 2261, and the basis of his
sentencing.
The holding of Apprendi was that, “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.”
490.

530 U.S. at

Alleyne extended the rule of Apprendi to the imposition of

mandatory minimum sentences and to statutes that have an
escalating range of penalties based on proof of specific
additional facts, concluding that any facts that increase the
prescribed range of penalties to which a criminal defendant is
exposed are elements of the crime that a jury must find beyond a
reasonable doubt.

Alleyne, 133 S. Ct. at 2160.

Section 2261 provides, in pertinent part that “[a] person
who travels in interstate or foreign commerce . . . with the
intent to kill, injure, harass, or intimidate a spouse, intimate
partner, or dating partner, and who, in the course of or as a
result of such travel or presence, commits or attempts to commit
a crime of violence against that spouse, intimate partner, or
dating partner, shall be punished as provided in subsection
(b).”

18 U.S.C. § 2261(a)(1).

Subsection (b) provides for

various penalties based upon the injury suffered by the victim.
Relevant to the case at bar, it provides that “if death of the
14

victim results,” the defendant shall be “imprisoned – (1) for
life or any term of years.”

Id. § 2261(b)(1).

Here, Count One of the Second Superseding Indictment
alleged that Defendant “traveled in interstate commerce with the
intent to kill and injure a spouse, to wit: Serika Dunkley
Holness; and in the course of and as a result of such travel,
committed and attempted to commit a crime of violence against
that spouse, to wit: murder; resulting in the death of the
victim, Serika Dunkley Holness.”
added).

ECF No. 42 at (emphasis

The jury was instructed that, in order to find guilty

of Count One, the government had to prove each of the following
elements:
The first element being that the victim was a spouse
of the defendant. Second, that the defendant traveled
in interstate commerce; that is, crossing state lines.
Third, that the defendant traveled in interstate
commerce with the intent to kill or injure the victim.
And fourth, that in the course of or as a result of
such travel, the defendant committed or attempted to
commit or aided and abetted the commission of a crime
of violence against the victim. And fifth, in this
instance, the death of the victim resulted.
Jury Instructions at 18 (emphasis added).

The jury found

Defendant guilty as to Count One and, in so doing, must have
made the factual finding that the death of Ms. Dunkley resulted
from Defendant’s crime of violence.

Accordingly, it was that

factual finding of the jury, and not any factual finding of the
Court, that exposed Defendant to a sentencing range that
15

included the possibility of life without parole.

That the

Court, in the exercise of its discretion, imposed such a
sentence does not implicate Apprendi or Alleyne.
None of the cases identified by Defendant as “Pertinent and
Significant new case law” yield a different result.

As

summarized by Defendant, the Supreme Court in Burrage held that
“without ‘death results’ findings the defendant must be
sentenced to lesser-included offense.”

ECF No. 137.6

Burrage

construed language in a statute that provided a mandatory
minimum sentence where “death results” from the use of a
controlled substance distributed by the defendant.

The issue

before the Court was determining the appropriate causation
standard to be applied to the proof that the controlled
substance distributed by the defendant, in that case, heroin,
resulted in the death of the victim.

The Court held that “at

least where use of the drug distributed by the defendant is not
an independently sufficient cause of the victim's death or
serious bodily injury, a defendant cannot be liable under the
penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless
such use is a “but-for” cause of the death or injury.”

6

134 S.

In addition to arguing that Burrage has no relevance to
Defendant’s motion, the government notes that Defendant’s
invocation of Burrage in support of his claim is untimely.
Burrage was decided on January 27, 2014, nine months prior to
Defendant’s filing of his original motion under § 2255. Thus,
it was not “new” case law.
16

Ct. at 892 (emphasis added).

The Court then overturned the

defendant’s conviction, having noted that the victim had been
taking heroin in combination with other drugs and there was no
evidence that the victim’s heroin use “was an independently
sufficient cause of [the victim’s] death.

No expert was

prepared to say that [the victim] would have died from the
heroin use alone.”

Id. at 890.

Here, there was never any dispute as to the cause of Ms.
Dunkley’s death.
field.

She was stabbed multiple times and left in a

The medical examiner’s detailed report and testimony

conclusively established that the sole cause of Ms. Dunkley’s
death was the infliction of those stab wounds.

Unlike Burrage,

there was no other possible cause of death proffered by
Defendant or suggested by the evidence.
The cases cited in Defendant’s additional submissions are
also inapposite.

The Supreme Court in Hurst held that Florida's

capital sentencing scheme, under which an advisory jury makes a
recommendation to a judge, and the judge makes the critical
findings needed for imposition of a death sentence, violates the
Sixth Amendment right to jury trial.

Here, the jury made the

factual finding, not an advisory recommendation, that death
resulted from Defendant’s crime of violence.

Montgomery

addresses the retroactive effect of new rules of constitutional
law but here there is no new law to apply.
17

The portion of the

Fourth Circuit’s decision in Hubbard cited by Defendant, see ECF
No. 147 at 1, addresses the weight given to the Sentencing
Guidelines, an issue not relevant here.
Defendant also points to the plea agreement of his coconspirator as somehow lending support to his Apprendi/Alleyne
argument.

In that plea agreement, the elements of the offense

to which Campbell pled guilty included that “the Defendant, or
the person the Defendant aided and abetted, committed a crime of
violence against the spouse, to wit, first degree premeditated
murder.”

Crim. No. 14-058, ECF No. 27 at 2.

While it happened

to be that the crime of violence to which Campbell pled was
“first degree premeditated murder,” nothing in that document
supports Defendant’s assertion that “premeditation” is an
“element necessary to support [Defendant’s] life sentence.”
No. 146 at 1.

ECF

In fact, the “Penalties” provision of Campbell’s

plea agreement specifically states that “[b]ecause the violation
of 18 U.S.C § 2261(a)(1) to which the Defendant is pleading
guilty resulted in the death of the victim, Serika Dunkley
Holness, the maximum sentence provided by 18 U.S.C. § 2261(b)(1)
is life imprisonment . . . .”
(emphasis added).

Crim. No. 14-058, ECF No. 27 at 2

Significantly, while noting that Campbell was

exposed to the possibility of a term of life imprisonment
because of the resultant death of the victim of the premeditated
crime of violence, Campbell received a lesser sentence.
18

C. Massiah Violation
Defendant argues that any evidence arising from
conversations or activities between Defendant and McGrath after
McGrath’s initial meeting with Sgt. Hall on August 31, 2009,
should have been suppressed under Massiah v. United States and
not presented to the jury.

In Massiah, the Supreme Court held

that the defendant “was denied the basic protections” of his
Sixth Amendment right to counsel by the admission of uncounseled
post-indictment statements obtained from a listening device
supplied by the police to a cooperating codefendant.
at 206.

377 U.S.

Massiah was extended to the prison environment in Henry

v. United States, 590 F.2d 544 (4th Cir. 1978), where the Fourth
Circuit held that the defendant’s Sixth Amendment right to
counsel was violated when the government enlisted an inmate
informant to engage the defendant, who proceeded to make
incriminating statements concerning his participation in an
armed robbery for which he was awaiting trial.

590 F.2d at 546-

47.
Defendant’s Massiah argument was raised before this Court
in a pretrial motion and before the Fourth Circuit on appeal.
This Court held that McGrath’s testimony was admissible because
1) the right to counsel secured by the Sixth Amendment has been
deemed “offense specific” and Defendant’s statements to McGrath
occurred prior to the federal indictment, and, 2) that absent
19

collusion, there was no Sixth Amendment violation that barred
admission of Defendant’s post-meeting statements.

On appeal,

the Fourth Circuit held that this Court correctly concluded that
the Sixth Amendment right simply did not attach to the federal
charges after finding that there was no suggestion in the record
that there was any collusion between state and federal
authorities.

706 F.3d at 591.

Addressing an issue not raised in this Court, the Fourth
Circuit went on to consider whether Defendant’s Fifth Amendment
rights were implicated in the interaction between Defendant and
McGrath after the initial meeting with Sgt. Hall.

Presuming

that there was a Fifth Amendment violation, the court went on to
conclude that, if the post-meeting evidence was admitted in
error when it should have been suppressed, any error was
“harmless beyond a reasonable doubt.”

Id. at 598.

The court

found that “[r]emand to develop the material facts relating to
custody and interrogation [] is unnecessary” in that the
remaining evidence of Defendant’s guilt “went far beyond
sufficiency.”

Id. at 598, 600.

Defendant argues in the instant motion that an evidentiary
hearing is necessary to determine if there was collusion between
the state and federal authorities.

ECF No. 132-1 at 11.

The

Fourth Circuit, however, has already determined that such an
inquiry is unnecessary.
20

D. Fraudulent Marriage
As noted above, Defendant makes several references in his
various submissions advancing the need for discovery relating to
a potential claim of “fraudulent marriage.”

Defendant provides

no explanation, however, as to the foundation for such a claim.
Given that it is his own marriage that he is referencing, it
would be expected that he would be able to convey at least the
general nature of that claim.
Rule 6(a) of the Rules Governing Section 2255
Proceedings states that “[a] party may invoke the processes of
discovery . . . if, and to the extent that, the judge in the
exercise of his discretion and for good cause shown grants leave
to do so, but not otherwise.”

In United States v. Roane, 378

F.3d 382, 402–03 (4th Cir. 2004), the Fourth Circuit cited the
following as the proper standard in considering such claims:
“good cause for discovery exists when a petition for habeas
corpus establishes a prima facie case for relief.” (internal
citations omitted).

Discovery is warranted “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) (emphasis added).
Here, as to his fraudulent marriage argument, Defendant has
offered no specific allegations at all, much less established a
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prima facie case that he would be entitled to any relief on this
ground.
E. Sergeant Hall as an Expert
In his “Amendment to his Placeholder Motion,” Defendant
suggests that “trial counsel was ineffective for failure to
argue that Sergeant Hall’s testimony should have been excluded
because he wasn’t properly qualified as an expert witness.”
No. 138 at 4.

ECF

The particular testimony at issue is Sgt. Hall’s

use of cell tower data to map Defendant’s route on the day of
the crime.

In addition to being untimely, this argument is

wholly without merit.

First, counsel actually did object to

this testimony at trial and the objection was overruled.
Furthermore, permitting Sgt. Hall to give this testimony was
proper in that the Fourth Circuit has held that the simple
mapping of cell towers does not require expert testimony.
United States v. Graham, 796 F.3d 332, 364-65 (4th Cir. 2015),
vacated on other grounds, United States v. Graham, 824 F.3d 421
(4th Cir. 2016)(en banc).

Finally, even if the admission of this

testimony was in error, that error was harmless.

The route

traveled by Defendant on June 5, 2009, was never in dispute.
Defendant’s carjacking ruse was premised on his traveling that
route and that route was also established by the series of
activations on Defendant’s EZ Pass transponder.

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The Court finds no error or prejudice related to Sgt.
Hall’s testimony regarding the route traveled by Defendant.
F. Certificate of Appealability
Because the Court will deny Defendant’s motion under §
2255, it must determine whether a certificate of appealability
should issue.

A certificate of appealability shall not issue

absent “a substantial showing of the denial of a constitutional
right.”

28 U .S.C. § 2253(c)(2).

A petitioner satisfies this

standard by demonstrating that reasonable jurists would find
that an assessment of the constitutional claims is debatable and
that any dispositive procedural ruling dismissing such claims 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).

As reasonable

jurists would not find this Court's dismissal of petitioner's
Section 2255 motion debatable, a certificate of appealability
will not issue.
For all of the above stated reason, the Court will deny
Defendant’s motion under § 2255, as well has his motion to amend
that motion.

A separate order will issue.

_______________/s/________________
William M. Nickerson
Senior United States District Judge
DATED: March 27, 2017

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