Coats v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 3/30/2018. (dass, Deputy Clerk) (c/m 3/330/18-das)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WADE COATS,

*

Petitioner,

*

Criminal No. RDB-09-333

v.

*

Civil Action No. RDB-15-910

UNITED STATES OF AMERICA,

*

Respondent.
*

*

*

*
*

*

*

*

*

*

*

*

*

*

MEMORANDUM OPINION
Following a five-day trial, a jury convicted pro se Petitioner Wade Coats (“Petitioner”
or “Coats”) of one count of Conspiracy to Distribute and Possess with Intent to Distribute
over 5 Kilograms of Cocaine, in violation of 21 U.S.C. § 846, and one count of Possession
of a Firearm in furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c).
(Jury Verdict, ECF No. 143.) Judge Quarles of this Court1 sentenced Petitioner to five
hundred and forty (540) months’ imprisonment for the drug charge and sixty (60) months’
imprisonment for the firearm charge, to be served consecutively for a total term of 600
months with credit for time served. (ECF No. 230 at 2.) Petitioner subsequently appealed his
conviction and sentence to the United States Court of Appeals for the Fourth Circuit, which
affirmed this Court’s judgement. United States v. Cavazos, Nos. 12-4701, 12-4737, 542 Fed.
App’x 263 (4th Cir. Oct. 17, 2013).

Judge William D. Quarles of this Court presided over Petitioner’s trial and sentenced him. This case was subsequently
reassigned to the undersigned upon Judge Quarles’ retirement from this Court.
1

1

On March 31, 2015, Petitioner filed a Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255. (ECF No. 280.) On January 4, 2016, Petitioner also
filed a Motion to Compel Attorney to Surrender Case Files. (ECF No. 295.) Having
reviewed the parties’ submissions, this Court finds that no hearing at this time is necessary.
See Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, Petitioner’s Motion to
Compel (ECF No. 295)2 is DENIED, and Petitioner’s Motion to Vacate (ECF No. 280) is
DENIED IN PART and STAYED IN PART. Specifically, all of Petitioner’s claims are
DENIED except his claim of ineffective assistance of counsel at sentencing and on appeal,
which this Court hereby STAYS, pending appointment of counsel for the Petitioner.
BACKGROUND
The background facts of this case were fully set forth in Judge Quarles’ September
30, 2011 Memorandum Opinion and the Fourth Circuit’s October 17, 2013 Memorandum
Opinion. United States v. Cavazos, No. WDQ-09-0333, 2011 WL 4596050 (D. Md. Sept. 30,
2011) (ECF No. 162); United States v. Cavazos, Nos. 12-4701, 12-4734, 542 Fed. App’x 263
(4th Cir. Oct. 17, 2013). To summarize, Coats was arrested as a result of observations of his
activity on April 27 and 28, 2009 by Task Force Officers (“TFOs”) of the Drug
Enforcement Administration (“DEA”). Cavazos, 542 Fed. App’x at 264-65. Specifically, there
were five officers involved in Coats’ investigation: Brian Shutt, Dave Clasing, E.T. Williams,
Mark Lunsford, and Derke Ostrow.3 Id. at 264. The officers were investigating Ronald
Brown (“Brown”), who was suspected of distributing large amounts of heroin. Id. While

In this motion, Petitioner seeks various files from his trial counsel. Petitioner does not, however, state what files he
seeks or what either his appellate counsel or the Clerk of this Court have not provided for him. (See ECF No. 300
(confirming receipt of a four-foot tall stack of files from appellate counsel).) Therefore, this motion is denied.
3 As discussed infra, Lunsford was later investigated for and pleaded guilty to misconduct in other cases.
2

2

observing Brown, the TFOs observed an exchange between Brown and an individual later
identified as Coats. Id. at 265. After the exchange, the officers observed Coats carry several
bags from his car into the Marriott Waterfront Hotel in Baltimore, including a bag he had
received from Brown. Id. When Coats left the hotel, the officers followed him to a seafood
restaurant and cell-phone store before conducting a Terry4 stop of Coats’ rental car. Id.
During the stop, the officers found a firearm on Coats’ person. Id. at 266. Pursuant to a
search warrant issued by the Circuit Court for Baltimore City, subsequent searches of Coats’
hotel room, the cell-phone store, a Dodge Caravan connected with co-defendant Jose
Cavazos (“Cavazos”), and other locations related to Brown’s dealings revealed:
(1) $274,000 in cash in heat-sealed plastic bags, a heat-sealer machine and
bags, a money counter, cell phones, and a tally sheet from Room 943; (2) a
suitcase with $337,482 in cash from the Dodge Caravan; (3) $16,520 in cash,
paperwork, heat-sealer bags, and a gun magazine from the cell-phone store;
and (4) 410 grams of cocaine, 238 grams of heroin, a bag of gel capsules, a gel
capper press, scales, a metal strainer and spoon, and a cell phone from 1112
Harwall Road.
Id. at 266-67.5
A Grand Jury subsequently charged Coats and co-defendants Brown, Cavazos, and
James Bostic (“Bostic”), with various offenses related to a conspiracy to distribute marijuana
and cocaine. (ECF No. 66.) Bostic and Brown pleaded guilty. (ECF Nos. 85; 88.)6 Coats and
Cavazos continued to trial, and on February 9, 2011, the jury convicted Coats of Conspiracy
Pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), an officer may stop and briefly detain a person for
investigative purposes when there is reasonable suspicion that criminal activity is afoot. Id. at 30. A “Terry stop” may
involve the “temporary detention of [an] individual[] during the stop of an automobile by the police.” Whren v. United
States, 517 U.S. 806, 809 (1996).
5 Room 943 was Coats’ hotel room. Cavazos, 542 Fed. App’x at 266. The Harwall Road location was where officers had
observed Brown sell narcotics to a confidential informant in a controlled buy. Id.
6 James Bostic was sentenced on December 8, 2010 to 210 months’ (17-and-a-half years’) imprisonment. (Amended
Judgment, ECF No. 116.) The record also reflects that Ronald Brown was placed on probation for a period of five years
on March 4, 2014, and that he was discharged from supervision on October 18, 2017. (ECF No. 311.)
4

3

to Distribute and Possess with Intent to Distribute over 5 Kilograms of Cocaine (Count I)
and Possession of a Firearm in furtherance of a Drug Trafficking Crime (Count III). 7 (See
Superseding Indictment, ECF No. 66; Jury Verdict, ECF No. 143.) Cavazos was also
convicted of Count I. (See Jury Verdict, ECF No. 141.)
While Coats and Cavazos were awaiting sentencing, on April 25, 2011, the
Government provided FBI FD-302 forms (“the 302s”) to Coats and Cavazos for the first
time. Cavazos, 2011 WL 4596050, at *3. The 302s included notes from FBI agents in Dallas,
Texas, related to interviews they had conducted with Alex Noel Mendoza-Cano (“Cano”)
about drug cartel activity. Id. Cano testified for the prosecution concerning Cavazos and
Coats’ links to the drug conspiracy. Id. However, the prosecutors did not become aware of
the interviews conducted by the Dallas FBI agents or the 302s until after trial. Id. Upon
receipt, the prosecutors notified the Defendants. Id.
After receiving the 302s, on May 5, 2011, Coats and Cavazos moved for a new trial.
(ECF No. 151.) Judge Quarles determined that although the new evidence had not been
provided to the Defendants and was favorable to them, it was not material. Cavazos, 2011
WL 4596050 at *8. He explained, “[a]lthough [the 302s] might have provided additional
impeachment of Cano, they d[id] not undermine confidence in the outcome of the trial . . .
The jury was aware that Cano had lied before and was testifying for a benefit.” Id. Because
the jury had sufficient evidence at trial to determine Cano’s credibility, the evidence would
Coats was charged in Counts I and III of the Superseding Indictment. (ECF No. 66.) At trial, Coats’ counts on the
verdict sheet were renumbered 1 and 2, inconsistent with the numbering of the Superseding Indictment. (ECF No. 143.)
However, the content of those counts was consistent across the Superseding Indictment and the verdict sheet. Coats
raised on appeal that this Court erred in its handling of the verdict sheet presented to the jury. The Fourth Circuit,
however, determined that, “the district court simply renumbered the charges from the superseding indictment and the
jury found Coats guilty of the very crimes of which the district court adjudicated him guilty. Accordingly, there was no
error, and certainly no plain error.” Cavazos, 542 Fed. App’x at 270. Therefore, Coats’ charges will be referred to as
Count I and Count III throughout this opinion per the Superseding Indictment. (ECF No. 66.)
7

4

have been merely cumulative. Therefore, on September 30, 2011, this Court denied the
Defendants’ motion for a new trial. (ECF Nos. 162, 163.) The Defendants appealed, and the
Fourth Circuit affirmed the District Court’s ruling. Cavazos, 542 Fed. App’x at 270-72.
On August 28, 2012, following a contested hearing, Judge Quarles sentenced Coats to
five hundred and forty (540) months’ imprisonment for Count I and sixty (60) months’
imprisonment for Count III to be served consecutively for a total term of 600 months with
credit for time served. (ECF No. 230 at 2; Sentencing Hr’g Tr., ECF No. 249, at 35-36.)
Both Coats and Cavazos appealed their convictions and sentences to the Fourth Circuit.
(ECF Nos. 225, 233.) They argued on appeal that the district court erred by (1) denying their
pre-trial evidence suppression motions; (2) mishandling the verdict sheet presented to the
jury; (3) refusing to grant a new trial based on the late disclosure of the 302s; and (4)
imposing substantively unreasonable sentences. Cavazos, 542 Fed. App’x 263. The Fourth
Circuit affirmed this Court on all grounds. Id. at 264.8
STANDARD OF REVIEW
As the Petitioner proceeds pro se, this Court must construe his pleadings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Alley v. Yadkin County Sheriff Dept., No. 171249, 698 Fed. App’x 141 (Mem) (4th Cir. Oct. 5, 2017) (citing Erickson for the proposition
that “[p]ro se complaints and pleadings, however inartfully pleaded, must be liberally
construed and held to less stringent standards than formal pleadings drafted by lawyers”).
The Fourth Circuit did not consider Petitioner’s claim that his appellate counsel offered ineffective assistance at
sentencing or on appeal. In many cases, such a claim is properly asserted for the first time in a § 2255 petition. United
States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). A collateral attack on counsel’s performance is especially suitable
when a petitioner, like Coats, asserts that counsel provided ineffective assistance on appeal. What’s more, Coats’
appellate counsel had also served as his sentencing counsel, and appellate counsel declined to attack on direct appeal his
own performance at sentencing.
8

5

Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside or correct
his sentence on four grounds: (1) the sentence was imposed in violation of the Constitution
or laws of the United States, (2) the court was without jurisdiction to impose the sentence,
(3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is
otherwise subject to a collateral attack. Hill v. United States, 368 U.S. 424, 426-27 (1962)
(citing 28 U.S.C. § 2255). “[A]n error of law does not provide a basis for collateral attack
unless the claimed error constituted ‘a fundamental defect which inherently results in a
complete miscarriage of justice.’” United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting
Hill, 368 U.S. at 428).
The scope of a § 2255 collateral attack is far narrower than an appeal, and a
“‘collateral challenge may not do service for an appeal.’” Foster v. Chatman, __ U.S. __, 136 S.
Ct. 1737, 1758 (2016) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)). Thus,
procedural default will bar consideration under § 2255 of any matters that “could have been
but were not pursued on direct appeal, [unless] the movant . . . show[s] cause and actual
prejudice resulting from the errors of which he complains.” United States v. Pettiford, 612 F. 3d
270, 280 (4th Cir. 2010) (citing United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir.
1999)).
DISCUSSION
I.

Timeliness of Petitioner’s Motion

A one-year statute of limitations applies to § 2255 petitions. 28 U.S.C. § 2255(f). The
limitations period runs from the latest of:
(1) the date on which the judgment of conviction becomes final; (2) the date
on which the impediment to making a motion created by governmental action
6

in violation of the Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or (4) the date
on which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.
Id.; see also Whiteside v. United States, 775 F.3d 180, 183 (4th Cir. 2014). A conviction becomes
final for the purpose of starting the one-year limitations period when the opportunity to
appeal expires. See Clay v. United States, 537 U.S. 522, 524-25 (2003); United States v. Sosa, 364
F. 3d 507, 509 (4th Cir. 2004). After the Fourth Circuit affirmed Petitioner’s conviction and
sentence, he appealed to the Supreme Court of the United States. On March 24, 2014, the
Supreme Court denied his petition for writ of certiorari. Coats v. United States, 134 S. Ct. 1571
(2014) (Mem). Therefore, his judgment of conviction became final on March 24, 2014.
Petitioner did not file his Motion to Vacate until March 31, 2015. However, the Government
has not challenged the timeliness of Petitioner’s Motion, and this Court accords his
pleadings liberal construction in light of his proceeding pro se in this matter. Accordingly, this
Court will address the issues raised and will treat the motion as having been timely filed.
II.

Police Misconduct Claim

Petitioner Coats asserts generally that he was arrested as a result of police
misconduct. He claims that the DEA TFOs who arrested him “reverse engineered a drug
conspiracy, with manufactured and false evidence.” (ECF No. 280 at 19.)9 To support this
claim, Coats lists a number of perceived inconsistencies among facts presented at trial and
suggests that the police failed to investigate certain leads. (Id.) The Supreme Court has held
Petitioner’s Motion (ECF No. 280) features inconsistent handwritten pagination. Citations to specific pages of this
motion are therefore based on the automated ECF pagination stamps.
9

7

that there is no due process violation simply because “the police fail to use a particular
investigatory tool.” Arizona v. Youngblood, 488 U.S. 51, 58-59, 109 S. Ct. 333 (1988). This is
because “police do not have a constitutional duty to perform any particular tests.” Id.; see
also United States v. Teran, Nos. 11-4791, 11-4844, 496 Fed. App’x 287 (4th Cir. Nov. 1, 2012)
(determining that the government does not violate Brady simply by failing “to employ all
investigative techniques”); Werth v. United States, 493 Fed. App’x 361, 366 (4th Cir. 2012)
(“While the government is obligated to disclose favorable evidence in its possession, it is not
required to create evidence that might be helpful to the defense.”).
Coats does not allege that the Government withheld evidence.10 Rather, he argues
that the Government should have pursued certain investigatory paths that include: locating
the online rental car agreement for Coats’ rental car; securing video footage from the cellphone store’s surveillance system, the Baltimore City’s surveillance system, and/or the lobby
video from the Marriott Waterfront Hotel; and obtaining Coats’ “cell-site information” from
his cell-phone carrier for GPS information. (ECF. No. 280 at 20.) However, as explained
above, the Government is only required to disclose the information it actually collects; it
does not have a duty to collect information that may be helpful to a defendant.
Petitioner also seeks relief based on conduct by former DEA TFO Mark Lunsford.
In September of 2009, a few months after Coats’ arrest, Lunsford was charged with various
Without leave of this Court, Petitioner filed a Supplemental Brief (ECF No. 312) months after his Reply (ECF No.
301.) This Supplemental Brief alleges in part that “the Government never turned over to Defendant[’]s Counsel the
DRUG LEDGERS, although it was seized by the Duncanville Police Department and turned over to the FBI in
December of 2009.” (Id. at 2.) These ledgers were mentioned in passing in the Cano 302s. (ECF No. 312-1 at 2.) Even if
timely filed with leave of this Court, Petitioner’s withholding claim fails because he provides no explanation of how the
ledgers would have undermined Cano’s testimony or otherwise served as exculpatory, material evidence at trial. As the
Fourth Circuit has held, “vague and conclusory allegations contained in a § 2255 petition may be disposed of without
further investigation by the District Court.” United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013). This Court also need
not address the remainder of this untimely and unsolicited supplemental brief, which essentially constitutes an
uncertified second or successive motion. See 28 U.S.C. § 2255(h).
10

8

theft and fraud offenses related to his duties as a DEA Officer. United States v. Fisher, 711
F.3d 460, 463 (4th Cir. 2013). One offense included falsely attributing information to a
confidential informant with whom Lunsford was splitting reward money. Id. While Lunsford
was not charged in relation to Petitioner’s case, during a search warrant of Lunsford’s home,
the Government recovered personal items belonging to Coats, including a watch. (ECF No.
291 at 8.)
Petitioner claims that this is evidence that all of the officers in his case “attempted
and did conspire to deprive (sic) Coats and later Jose Cavazos of Money, Property, Liberty
and Life.” (ECF No. 280 at 19.) To support his argument, Petitioner cites United States v.
Fisher, 711 F.3d 460 (4th Cir. 2013), where the United States Court of Appeals for the
Fourth Circuit held that the defendant could withdraw his guilty plea after finding that
Lunsford was “responsible for the investigation that led to the defendant’s arrest and guilty
plea” and his conduct “underpinned the search warrant for the defendant’s residence.” 711
F.3d at 469. In Fisher, the search warrant for the defendant’s home and vehicle had been
solely based on Lunsford’s sworn affidavit, whereby he falsely testified that a confidential
informant had told him that the defendant was distributing narcotics. Id. at 466. As the
Fourth Circuit noted, the case was “extraordinary” and the facts presented “highly
uncommon circumstances” where gross police conduct went “to the heart of the
prosecution’s case.” Id. at 462, 466. Subsequent to the Fisher decision, this Court considered
a petitioner’s claim for relief based on Lunsford’s conduct in Rich v. United States, Nos. 123226, 08-0438, 2013 WL 6055227 (D. Md. Nov. 14, 2013). In that case, this Court denied
petitioner’s claim after finding that unlike in Fisher, the petitioner “provide[d] no support for
9

the allegation that Lunsford ‘played a central role’ in [his] investigation.” Id. at *4.
Like in Rich, Petitioner has not shown that Lunsford played a central role in his
investigation. Several different officers observed Coats’ exchange with Brown, his carrying
several bags including one from Brown into the Waterfront Hotel, and his carrying several
bags from the seafood store into his car. 52 Fed. App’x at 265. The officers then approached
Coats’ car, where Officer Shutt led the conversation. Id. After the officers determined that
Coats lied about being at the hotel and found a gun on him, Coats was arrested. Id. at 26566. Thereafter the officers went back to the hotel and entered the room identified as Coats’
by hotel security. Id. at 266. In the hotel room, the officers saw heat-sealed wrapped
packages and found Cavazos, who told them that there was about $200,000 in the room but
that the drugs were not there yet. Id. After arresting Cavazos, the officers did not immediately
search the room. Id. Rather, Lunsford secured the hotel room while other officers prepared
the affidavit for the search warrant of the room.11 Id. at 266.
Given the above facts, Lunsford’s involvement in Petitioner’s case does not amount
to the type of “broad police conspiracy” Petitioner suggests. (ECF No. 280 at 18-21.)
Multiple officers were consistently involved in the observations and investigations that led to
Coats’ conviction. The only time the record indicates Lunsford acted independently was
while he secured the hotel room. Cavazos, 542 Fed. App’x at 266. Prior to being left to secure
This Court previously explained that the affidavit:
[D]escribed the telephone call and meeting between Brown and the C.I. and recounted the basis for
the informant's knowledge that Brown was selling heroin. It described the meeting between Brown
and Coats, as well as the agents’ surveillance of Coats’s drive to the Marriott. The affidavit included
Coats’s representation that that he had not been to the Marriott that day and mentioned the police
scanner, fake licenses, firearm, and currency. The affidavit also noted that Coats had rented Room 943
and that Cavazos was in the room, and described the statements Cavazos gave to the agents. The
affiant stated that Lunsford had found the Dodge Caravan registered to Crystal Cavazos in the
Marriott's garage and a drug dog had alerted for narcotics in the van.
Cavazos, 542 Fed. App’x at 266.
11

10

the room, the officers saw heat-sealed wrapped packages and were told by Cavazos that
there was around $200,000 in the room. Id. After obtaining the search warrant, the cash
constituted the bulk of what the officers found: “$274,000 in cash in heat-sealed plastic bags,
a heat-sealer machine and bags, a money counter, cell phones, and a tally sheet from Room
943.” Id. at 266-67. Although Coats’ personal items were later found in Lunsford’s
possession (ECF No. 291 at 8), there is no indication that he tainted evidence against
Petitioner or affected the reliability of the evidence against him. See Smith v. United States,
Nos. l:97-cr-341, l:15-cv-435, 2015 WL 5278349 (E.D. Va. Sept. 8, 2015) (denying
petitioner’s claim for relief based on police misconduct after finding that petitioner failed to
show how his allegations bore on reliability of all evidence against him). Therefore,
Petitioner is not entitled to relief on this ground.
III.

Prosecutorial Misconduct Claim

Coats contends that he was “deprived of a fair trial by the government[’]s
overreaching and manipulation of the process,” in violation of his Fifth and Sixth
Amendment rights. (ECF No. 280 at 28.) The Fourth Circuit has held that “‘[a]iry
generalities, conclusory assertions and hearsay statements [do] not suffice’ to
establish prosecutorial misconduct.” United States v. Roane, 378 F.3d 382, 400 (4th Cir.
2004) (quoting United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987)); see also United States v.
Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (“[V]ague and conclusory allegations contained in
a § 2255 petition may be disposed of without further investigation by the District Court.”).
“The test for reversible prosecutorial misconduct generally has two components: that ‘(1) the
prosecutor’s remarks or conduct must in fact have been improper, and (2) such remarks or
11

conduct must have prejudicially affected the defendant’s substantial rights so as
to deprive the defendant of a fair trial.’” United States v. Brockington, 849 F.2d 872, 875 (4th
Cir. 1988) (quoting United States v. Hernandez, 779 F.2d 456, 458 (8th Cir. 1985)).
First, Coats argues that the prosecutors should have granted Lunsford immunity so
that he could testify in Coats’ case.12 (ECF No. 280 at 28-29.) Petitioner claims that granting
immunity was necessary to “guard [his] constitutional right to present an effective defense”
(ECF No. 280 at 28) and that it “would have been appropriate to compel the testimony of
Lunsford” (ECF No. 301-1 at 7). This Court first notes that it is within the province of the
prosecution to determine who should be granted immunity. United States v. Klauber, 611 F.2d
512, 519-20 (4th Cir. 1979). Next, as discussed supra with regard to Petitioner’s police
misconduct claim, the only time Lunsford acted independently in Coats’ case is when he
secured the hotel room. As the Fourth Circuit opinion describes, other officers observed the
contents of the room prior to this time and obtained a search warrant which led to the
discovery of substantial evidence. Petitioner therefore fails to show how – even if it was
improper for the prosecution to not grant Lunsford immunity – this failure prejudicially
affected Petitioner’s rights to a fair trial.
Second, Coats asserts that allowing Alex Noel Mendoza-Cano (“Cano”) to testify at
trial “perpetrate[d] a fraud upon the Court,” because the district court allowed him to use an
interpreter. (ECF No. 280 at 29.) The Fourth Circuit addressed the issue of Cano’s
credibility in ruling on Coats’ appeal, determining that “defense counsel was quite effective,
without the 302s, in impeaching Cano . . . [T]he jury had strong reason to conclude that he
Coats also references the prosecution’s failure to charge Lunsford in relation to his case. However, he offers no reason
the prosecution had an obligation to do so or how he was prejudiced. As stated above, Detective Lunsford entered a
plea agreement and was sentenced related to his criminal conduct. (ECF No. 188 at 2-3.)
12

12

would testify falsely if he believed it would accelerate his return to his family.” Cavazos, 542
Fed. App’x at 272. The Fourth Circuit further determined that additional evidence likely
would not have “cast any further doubt on the truth of Cano’s testimony concerning the
existence and scope of the conspiracy.” Id. Through his motion, Coats is seeking to “cast
further doubt” on Cano’s testimony despite the Fourth Circuit already recognizing that his
counsel effectively discredited Cano during trial. As none of Petitioner’s assertions amount
to improper conduct prejudicial to his case, his claims of prosecutorial misconduct fail.
IV.

Ineffective Assistance of Counsel

A freestanding claim of ineffective assistance of counsel may properly be asserted for
the first time in a § 2255 petition. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.
1991). This rule is especially applicable to Petitioner’s claim of ineffective assistance of
sentencing and appellate counsel, who did not challenge his own performance at sentencing
or on appeal. To state a claim for relief based on a Sixth Amendment claim of ineffective
assistance of counsel, a petitioner must satisfy the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 671 (1984). The first, or “performance,” prong of the test requires
a showing that defense counsel’s representation was deficient and fell below an “objective
standard of reasonableness.” Id. at 688. In making this determination, courts apply a strong
presumption that counsel’s actions fell within the “wide range of reasonable professional
assistance.” Id. at 688-89. The second, or “prejudice” prong, requires that a petitioner
demonstrate that his counsel’s errors deprived him of a fair trial. Id. at 687.
In applying the Strickland test, the Fourth Circuit has noted that there is no reason to
address both prongs if the defendant makes “an insufficient showing on one.” Moore v.
13

Hardee, 723 F. 3d 488, 500 (4th Cir. 2013) (quoting Strickland, 466 U.S. at 697). Thus,
ineffective assistance of counsel claims may be disposed of based solely on a deficiency in
satisfying either the “performance” prong or the “prejudice” prong. See Strickland, 466 U.S. at
697. The Fourth Circuit has also held that the mere possibility of a different trial result does
not satisfy the burden of proving prejudice. Hoots v. Allsbrook, 785 F.2d 1214, 1221 (4th Cir.
1986).
A. Trial Counsel
Coats asserts that his trial counsel was ineffective for a multitude of reasons. First,
Coats asserts that his trial counsel failed to investigate several matters. As the Strickland
Court explained, “counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary,” and it is for the court
to decide whether in a particular case “identified acts or omissions were outside the wide
range of professionally competent assistance.” 466 U.S. at 691. Specifically, Coats asserts that
counsel failed to: investigate Baltimore City Police records, obtain surveillance camera
footage, verify an address to use as impeachment, complete an on-site inspection of the area
around his cell-phone store, investigate Cano, and obtain GPS records from a testifying
witness. Given the number of assertions Petitioner makes, this Court addresses the prejudice
prong of Strickland. Quite simply, Petitioner has failed to indicate how any of these steps
could have resulted in a different outcome at trial. When evidence of guilt is overwhelming,
there is not a reasonable probability that but for counsel’s errors, the result would have been
different. United States v. Higgs, 663 F. 3d 726, 742 (4th Cir. 2011). In this case, the DEA
TFOs observed an exchange between Coats and Brown, observed Coats immediately go into
14

and depart from the Waterfront Marriott, and recovered a firearm and large amounts of
cocaine and heroin from Coats, his hotel room, the Dodge Caravan, and locations related to
Brown’s dealings. Cavazos, 542 Fed. App’x at 265-68.
Similar to his failure to investigate argument, Coats alleges that several instances at
trial constituted ineffective assistance. Specifically, Coats argues his trial counsel failed to:
impeach Brown, request immunity for Lunsford, obtain a jury instruction regarding
“compensated informant testimony,” object to a “summary chart,” call impeachment
witnesses, and object to expert testimony. These claims fail to meet the Strickland test for
several reasons. First, despite Coats’ assertion, counsel did impeach Brown using prior
convictions. (ECF No. 196 at 99-102.) Second, as discussed supra, it was entirely within the
Government’s discretion whether to grant Lunsford immunity. Third, a jury instruction
regarding “compensated” informants would have been inappropriate given that Cano and
Brown were not compensated. Finally, with regard to Petitioner’s last three arguments, he
fails to allege facts sufficient to “overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Coats’ third Strickland claim against his trial counsel is that he was denied access to
discovery material pursuant to a discovery agreement counsel entered into with the
Government. (ECF No. 280 at 24-25.) As this Court has explained, “[e]ntering into a
discovery agreement with the Government is a common practice in this district . . . The
discovery agreement prohibits counsel from providing a defendant with copies of discovery
materials for reasons of witness safety; however, it allows counsel to review any discovery
15

materials with the defendant.” Smith v. United States, 2013 WL 5945662, at *4 (D. Md. Nov. 5,
2013). As the Government’s Reply brief affirms, the discovery agreement merely prevented
counsel from creating copies of the discovery material to share with Coats. (ECF No. 291 at
29.) Trial counsel was “free to review the discovery material with Defendant at any time or
place and use it to its full effect in preparation for and at trial.” Id. By signing the agreement,
trial counsel did not limit Coats’ access to the discovery materials; he simply participated in a
routine discovery procedure implemented to help ensure witness safety. His performance did
not fall below an objective standard of reasonableness, nor is there evidence that signing
such a boilerplate agreement was prejudicial to the outcome of Coats’ case.
Finally, Petitioner argues that counsel had a conflict of interest, violating his right to
counsel “unhindered by conflicts of interest.” Mickens v. Taylor, 240 F.3d 348, 355 (4th Cir.
2001). The alleged conflict was that his trial counsel had filed a defamation suit against the
Baltimore Sun and hired his co-counsel in Coats’ trial to represent him. (ECF No. 280 at 22.)
Plaintiff claims that this left counsel “[t]oiling from many conflicts . . . unable and or
unwilling to render effective assistance.” (Id.) However, Petitioner’s argument for why this
suit allegedly made counsel ineffective relies on the same type of allegations he offered for
failure to investigate and ineffectiveness at trial. As explained above, such arguments do not
meet the prejudice or performance prongs under Strickland, and accordingly, this claim
fails.13
B. Sentencing and Appellate Counsel
Petitioner also alleges that his sentencing and appellate counsel (“appellate counsel”),
Coats also argues that his counsel was ineffective for not defending against Count III of the Superseding Indictment,
possessing a firearm during a drug trafficking crime. Counsel did, however, defend against the underlying drug
conspiracy, without which Petitioner could not have been convicted of Count III. Therefore, this claim fails.
13

16

who was appointed after Coats moved for new counsel, was ineffective. (ECF Nos. 171,
175.) Coats broadly asserts that he was “abandoned” by appellate counsel, and he provides a
number of specific examples. (ECF No. 280 at 27.) Appellate attorneys are also held to the
Strickland standard, and Coats must show that his counsel’s performance was deficient such
that it fell below an “objective standard of reasonableness.” 466 U.S. at 688.
1. Consultation and Pro Se Motions
The Petitioner broadly alleges that appellate counsel failed to consult with him
throughout the period of representation. Specifically, the Petitioner alleges that he made
several attempts to engage in “meaningful dialogue” with appellate counsel, but was ignored.
(ECF No. 280 at 15, 27.) Coats also contends that appellate counsel refused to assist in
preparing four pro se motions,14 though counsel did ensure those motions were filed. (See
ECF No. 280 at 27.) For example, before the Fourth Circuit, Coats sought new appellate
counsel in a pro se filing, Paper 52, complaining that appellate counsel refused to raise, among
other issues, an alleged error under Alleyne v. United States, 570 U.S. 99, 107-109, 133 S. Ct.
2151, 2158 (2013) (discussed infra), and the issue of “whether the district court plainly erred
under Gall v. United States, (2007, US), 552 U.S. 38, by failure to adequately explain the
sentence imposed.” (Fourth Circuit Docket No. 12-4737, ECF No. 52, at 11.) In the
alternative, Coats sought leave to file pro se supplemental briefs. Without addressing this
motion, two days later the Fourth Circuit issued its unpublished per curiam opinion
affirming Coats’ sentence. (Fourth Circuit Docket No. 12-4737, ECF No. 53.) After the

Coats specifically identifies two motions filed with this Court, Papers 164 and 212, and two motions filed with the
Fourth Circuit, Papers 52 and 66. In this Court, Coats filed Paper 164, a motion for new trial, on October 24, 2011. On
July 3, 2012, Coats filed Paper 212, also a motion for new trial along with motions for reconsideration, recusal, and a
hearing. During Coats’ Sentencing Hearing, this Court denied both motions. (ECF No. 249, at 3-4.)
14

17

Fourth Circuit issued its opinion, Coats filed a second pro se motion, Paper 66, which asserts
essentially the same Alleyne claim. (Fourth Circuit Docket No. 12-4737, ECF No. 66.) The
Fourth Circuit rejected this brief as untimely. (Fourth Circuit Docket No. 12-4737, ECF No.
67.) Coats has largely re-asserted this Alleyne claim in the instant § 2255 motion, which this
Court addresses infra. Coats’ final contention regarding his relationship with appellate
counsel is that he would not investigate “issues Coats had with this case.” (ECF No. 280 at
27.)
As the Supreme Court has noted, “no court [can] possibly guarantee that a defendant
will develop the kind of rapport with his attorney—privately retained or provided by the
public—that . . . guarantees a ‘meaningful relationship’ between an accused and his counsel.”
Morris v. Slappy, 461 U.S. 1, 14 (1983). The Government has not submitted an affidavit from
appellate counsel to rebut any of these allegations, but the transcript of the Sentencing
Hearing reveals that appellate counsel reviewed the PSR with Coats in preparation for the
sentencing hearing, challenged Coats’ classification as a leader or supervisor during the
sentencing hearing, and provided assistance throughout the proceeding. (Sentencing Hr’g
Tr., ECF No. 249 at 4-5, 7-10, 27.) Appellate counsel’s representation therefore does not
equate to “abandonment.”
In terms of the pro se motions, an attorney owes his client competent legal
representation, but the Constitution does not require the attorney to endorse every theory or
strategy advanced by a client, and the Petitioner has no constitutional right to compel
appointed counsel to assert every suggested issue on appeal. Jones v. Barnes, 463 U.S. 745, 751
(1983). Appellate counsel raised numerous issues during Coats’ sentencing and appeal, see
18

ECF No. 214; Cavazos, 542 Fed. App’x 263, but the refusals by this Court and the Fourth
Circuit to adopt those arguments do not themselves render appellate counsel’s
representation constitutionally defective. Additionally, Coats’ conclusory allegation that
appellate counsel did not investigate “issues,” which Coats fails to identify, may be properly
disregard by this Court. United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013). While far
from laudatory or a model of professional conduct, appellate counsel’s alleged
communications were not constitutionally deficient or prejudicial.
2. Error in Sentencing Memorandum
Petitioner notes that counsel made an error by referring to another client in a
sentencing memorandum to Judge Quarles. (ECF No. 214 at 2.) Such a typo does not fall
below the standard of reasonable professional assistance, and Coats was not prejudiced by
the error. Strickland, 466 U.S. at 689.
3. Drug Quantity in Presentence Report
The Petitioner argues that appellate counsel should have objected to the drug
quantity listed in the Presentence Report (PSR), which is sealed. The Government responds
that the drug quantity necessary for the maximum base offense level was easily attainable,
based almost solely on the seized drugs and money directly recovered during the
investigation. (Gov’t Resp. 37, ECF No. 291.)
Coats has not advanced a cogent reason for questioning appellate counsel’s decision
not to object to the drug quantity in the PSR. The verdict form reflects that the jury found
that “more than 5 kilograms of cocaine was involved,” which was the highest option
available on the form. (ECF No. 143.) At sentencing, this Court found that over 1,500
19

kilograms of cocaine was foreseeable. (ECF No. 249 at 8, 33.) In fact, this Court noted that a
full accounting for the entire relevant time period would generate a quantity more than ten
times required to meet the maximum base offense level. (Id. at 34-35.) Coats’ claim of
deficient performance on this score fails because any objection by appellate counsel would
have been meritless.
4. 3553(a)(6) Disparity Consideration
Given that Petitioner has broadly challenged the effectiveness of appellate counsel,
who allegedly engaged in minimal consultation with Coats, and that this Court should
liberally construe pro se filings, this Court now turns to an issue that neither this Court nor
the Fourth Circuit has addressed. Specifically, did appellate counsel provide ineffective
assistance by failing to argue that Coats’ sentence represents an “unwarranted . . . disparit[y]
among defendants with similar records who have been found guilty of similar conduct”? 18
U.S.C. § 3553(a)(6) (stating that the court “shall consider” this factor, among others). In this
case, co-defendant James Bostic was sentenced on December 8, 2010 to 210 months’ (17and-a-half years’) imprisonment. (Amended Judgment, ECF No. 116.) Next, Jose Cavazos
was sentenced on August 28, 2012 to 540 months’ (45 years’) imprisonment. (ECF No.
223.)15 Petitioner Coats was sentenced on September 11, 2012 to 600 months’ (50 years’)
imprisonment. (ECF No. 230.) The record also reflects that Ronald Brown was placed on
probation for a period of five years on March 4, 2014, and that he was discharged from
supervision on October 18, 2017. (ECF No. 311.)
During sentencing and on appeal, appellate counsel does not appear to have raised
Cavazos also has a pending motion for a reduced sentence due to an amendment to the Sentencing Guidelines. (ECF
No. 282.)
15

20

the issue of any disparity. When sentencing Petitioner, this Court explicitly considered Coats’
age, lack of criminal history, personal background, foreseeability of over 1,500 kilograms of
cocaine in the context of the conspiracy to distribute, and the recommended sentencing
range of 360 months to life imprisonment. Cavazos, 542 Fed. App’x at 273. This Court,
however, does not appear to have addressed the issue of any disparity under § 3553(a)(6).
(See ECF No. 249.) The Fourth Circuit went on to find “the court’s analysis to be sound and
certainly no abuse of discretion.” Cavazos, 542 Fed. App’x at 273.
As the parties’ submissions have not adequately addressed this issue, this Court will
STAY this narrow claim of ineffective assistance of sentencing and appellate counsel to
enable (a) Petitioner to secure court-appointed counsel and (b) both parties to prepare
supplemental briefing on this issue.
V.

Constitutionality of Sentence

Apart from the statutory considerations under 18 U.S.C. § 3553(a), Petitioner asserts
a direct constitutional attack on his sentence. He essentially argues that the Court
“constructively amended” the jury’s verdict by making factual findings under a
preponderance of the evidence standard regarding the quantity of drugs involved. (See ECF
No. 280 at 30-32 (citing Alleyne v. United States, 570 U.S. 99, 107-109, 133 S. Ct. 2151, 2158
(2013)).)16 He claims this error violated his constitutional rights.
Procedural default bars consideration under § 2255 of any matters that “could have
been but were not pursued on direct appeal, [unless] the movant . . . show[s] cause and

In Alleyne, 570 U.S. 99, the Supreme Court held that any fact increasing the applicable mandatory minimum sentence
for a crime is an “element” of the crime, which the fact-finder must find beyond a reasonable doubt. This requirement is
distinct from findings related to a “sentencing factor.” Id.

16

21

actual prejudice resulting from the errors of which he complains.” United States v. Pettiford,
612 F. 3d 270, 280 (4th Cir. 2010) (citing United States v. Mikalajunas, 186 F.3d 490, 492-93
(4th Cir. 1999)). Petitioner’s appellate counsel did not present this issue to the Fourth
Circuit. While Petitioner filed a pro se “Supplement Brief” asserting this claim after the
Fourth Circuit had already ruled on his direct appeal (Fourth Circuit Docket, Case No. 124737, ECF No. 66), the Fourth Circuit refused to consider the untimely filing (Fourth
Circuit Docket, Case No. 12-4737, ECF No. 67.) Petitioner therefore procedurally defaulted
this claim, and Petitioner has not met his burden of showing cause and prejudice or actual
innocence.
Even if this claim was not procedurally defaulted, Petitioner confuses calculations
under the Sentencing Guidelines with factual findings increasing mandatory minimums, as
addressed in Alleyne, 570 U.S. 99. At sentencing, the district court must “begin . . . by
correctly calculating the applicable Guidelines range.” Gall v. United States, 552 U.S. 38, 49-50
(2007). To do so, “the district court must make relevant factual findings based on the court’s
view of the preponderance of the evidence.” United States v. Young, 609 F.3d 348, 356-57 (4th
Cir. 2010); see also United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006). In drug
conspiracy cases, one of the necessary findings of fact, even after a jury renders its verdict,
relates to the quantity of drugs foreseeable to the defendant as part of the conspiracy. See,
e.g., United States v. Hughes, 401 F.3d 540, 546 25 (4th Cir.2005); United States v. Vaughn, 430
F.3d 518, 526 (2d Cir. 2005). It is well-settled that sentencing judges may find facts relevant
to determining a Guidelines range by a preponderance of the evidence, so long as that range
is treated as advisory and falls within the statutory maximum. United States v. Benkahla, 530
22

F.3d 300, 312 (4th Cir. 2008). In this case, the statutory maximum was life, see Cavazos, 542
Fed. App’x at 273, which permitted this Court to make factual findings under a
preponderance standard in order to determine the applicable Guidelines range.
This same analysis establishes that Petitioner cannot show cause, in the form of
ineffective assistance, for the procedural default of a meritless challenge. Therefore, this
Court denies Coats’ claim under § 2255 that his sentence is unconstitutional.
VI.

Petitioner’s Right to a Speedy Trial

Coats asserts there was a delay in his trial proceedings that violated his Sixth
Amendment right to a speedy and public trial. (See Pet’r’s Mot. at 33, ECF No. 280.) “The
Speedy Trial Act of 1974 (Speedy Trial Act or Act), 18 U.S.C. § 3161 et seq., requires that a
criminal defendant’s trial commence within 70 days after he is charged or makes an initial
appearance, whichever is later, see § 3161(c)(1), and entitles him to dismissal of the charges if
that deadline is not met, § 3162(a)(2). The Act, however, excludes from the 70–day period
delays due to certain enumerated events. § 3161(h).” Bloate v. United States, 559 U.S. 196, 198
(2010). As is relevant here, “delay resulting from . . . proceedings concerning the defendant”
is automatically excludable from a Speedy Trial Act calculation. 18 U.S.C. § 3161(h)(1);
United States v. Lucky, 569 F.3d 101, 106 (2d Cir. 2009) (“Some exclusions are automatic.
Other exclusions require judicial action.” (citation omitted)). In addition, “delay resulting
from a continuance” granted by the district court may be excluded if the district court makes
the findings required by § 3161(h)(7).” Bloate, 559 U.S. at 198-99 (2010).
Petitioner alleges that an unspecified delay in his case sometime between his arrest on
April 28, 2009, the trial commencement on January 31, 2011, and his sentencing on August
23

28, 2012 violated his Sixth Amendment right to a speedy trial. (ECF No. 280 at 33.) Coats’
initial trial date was set for February 8, 2010. (ECF No. 58.) The record shows that there
were three continuances in his case. The first two continuances were granted in response to
requests made by the Government.17 The Speedy Trial Act was tolled throughout this time
and at no point in the record did defense counsel object to the Government’s requests for
continuance of trial. (See ECF No. 64.) As scheduled, Judge Quarles began hearing pre-trial
motions on October 12, 2010. (ECF No. 100.) The Motions Hearing extended to October
13, 2010, at which time the Defendants requested a continuance of the trial date to secure
necessary witnesses. (ECF Nos. 101, 103.) All parties agreed to this continuance, and the
Court rescheduled the trial for January 31, 2011. (ECF Nos. 102, 103.) Judge Quarles
granted the tolling of time under the Speedy Trial Act specifically requested for by the
parties pursuant to 18 U.S.C. § 3161(h)(1)(D) and (h)(8). (See ECF No. 103.)
With each scheduling adjustment, time was tolled either automatically, after a defense
motion, or at the request of the parties. Therefore, Petitioner’s right to a speedy trial was not
violated and his claim fails.
CONCLUSION
For the foregoing reasons, Petitioner’s Motion to Compel Attorney to Surrender
Case Files (ECF No. 295) is DENIED. Petitioner’s Motion to Vacate (ECF No. 280) is
DENIED IN PART and STAYED IN PART. Specifically, all of Petitioner’s claims are
On February 3, 2010, the Government filed a motion requesting the continuance of trial date based on the arrest of
James Bostic made the day prior, on February 2, 2010. (ECF No. 64.) James Bostic was arrested as a part of the
Government’s ongoing investigation in preparation for Coats’ trial. Id. The Government’s motion was granted, and a
new trial date was set for August 2, 2010. (ECF No. 65.) James Bostic was subsequently added as a co-defendant in this
case. (ECF Nos. 66, 68.) On June 4, 2010, the Government requested a second continuance due to the scheduling
conflict of a key Government witness, TFO Brian Shutt. (ECF No. 74.) The Government’s motion was granted on July
26, 2010, and a new trial date was set for October 12, 2010. (See ECF No. 79.)
17

24

DENIED except his claim of ineffective assistance of sentencing and appellate counsel,
which this Court hereby STAYS to enable (a) Petitioner to secure court-appointed counsel
and (b) both parties to prepare supplemental briefing on this issue.
Pursuant to Rule 11(a) of the Rules Governing Proceedings under 28 U.S.C. § 2255,
this Court is required to issue or deny a certificate of appealability if it “enters a final order
adverse to the applicant.” This Memorandum Opinion and accompanying Order, however,
do not constitute a “final order adverse to the applicant” as, pursuant to the STAY, this
Court has yet to resolve Petitioner’s claim of ineffective assistance of sentencing and
appellate counsel.

A separate Order follows.
Dated: March 30, 2018
______/s/__________________
Richard D. Bennett
United States District Judge

25