Griffin v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 10/3/2017. (c/m)(hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EUGENE GRIFFIN,

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Petitioner,

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v.

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UNITED STATES OF AMERICA,

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Respondent.
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Civ. Action No. RDB-15-2552
Crim. Action No. RDB-12-0585

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MEMORANDUM OPINION
The pro se Petitioner Eugene Griffin (“Petitioner” or “Griffin”) pled guilty before this
Court to one count of Possession with Intent to Distribute Cocaine in violation of 21 §
841(a)(a). (ECF No. 28.) Judge Quarles of this Court1 sentenced Petitioner to sixty-three (63)
months imprisonment, ECF No. 38, consistent with his agreement with the Government to
a sentencing range of 63 months to 132 months, pursuant to Rule 11(c)(1)(C) of the Federal
Rules of Criminal Procedure. Currently pending before this Court are Petitioner’s Motion
for Extension of Time to File 28 U.S.C. § 2255 (ECF No. 41), Motion to Reduce Sentence
Under 18 U.S.C. § 3582(c)(2) (ECF No. 45), Motion to Vacate, Set Aside or Correct
Sentence Under 28 U.S.C. § 2255(ECF No. 48), and Motion to Appoint Counsel (ECF No.
57). For the following reasons, Petitioner’s Motion for Extension of Time to File 28 U.S.C. §
2255 (ECF No. 41) is DENIED as MOOT; the Motion to Reduce Sentence (ECF No. 45)

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

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is DENIED; the Motion to Vacate, Set Aside or Correct Sentence (ECF No. 48) is
DENIED; and Petitioner’s Motion to Appoint Counsel (ECF No. 57) is DENIED.2
BACKGROUND
In August of 2009, Petitioner was arrested on charges in this case for possession with
intent to distribute 41.58 grams of crack cocaine. (ECF No. 35 at 1.) Because this offense
violated Petitioner’s state court probation, he was held in state custody on a probation
warrant. (Id.) Petitioner was still in state custody when he pled guilty in this Court to
Possession with Intent to Distribute Cocaine, in violation of 21 § 841(a)(a), on September 3,
2013. (ECF No. 28.) The initial plea agreement contained a Rule 11(c)(1)(C) provision
whereby Petitioner and the Government agreed to recommend a sentence between 63 and
132 months. (ECF NO. 29 at 4-5.) During Rearraignment, Petitioner stated that he
understood that he was pleading guilty to possession of a quantity of cocaine for
distribution. (ECF No. 54-3 at 4.) Petitioner also stated that he had met at length with his
counsel regarding the terms of the Indictment, and that he was satisfied with his
representation. (ECF No. 54-3 at 8.) In addition, Petitioner acknowledged that he
understood he was waiving his right to appeal his sentence so long as it fell within the 63 to
132 month range. (ECF No. 29 at 6; ECF No. 54-3 at 14-15.)

2 There is no Sixth Amendment right to counsel in collateral proceedings. See Pennsylvania v. Finely, 481 U.S.
551, 555 (1987). A court may appoint counsel to a pro se litigant seeking Section 2255 relief if the court
determines “that the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). Rule 8(c) of the Rules
Governing Section 2255 Proceedings for the United States District Courts provides that a court must appoint
counsel only “[i]f an evidentiary hearing is required.” See Rule 8(c) of the Rules Governing Section 2255
Proceedings. As Petitioner has adequately presented his claims and grounds for relief, there is no reason to
appoint counsel. The interests of justice do not require appointment of counsel, and no evidentiary hearing is
necessary in this matter.

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On October 13, 2013, after Rearraignment but prior to Sentencing, there was a
hearing in state court on Petitioner’s violation of state probation. (ECF No. 53 at 1.) At that
hearing, Petitioner was sentenced to seven years in state custody. (Id.) In March of 2014,
Petitioner was transferred to federal custody. (Id.) When Petitioner’s counsel listened to a
transcript of the state court hearing to determine why the state court gave Petitioner a seven
year sentence, counsel discovered that the state’s attorney had incorrectly stated that the
controlled substance in the federal case was several kilograms of marijuana. (Id.)
On June 27, 2014, the Government and Petitioner jointly requested that this Court
sentence Petitioner to 63 months to reflect Petitioner’s five years of incarceration at the
Baltimore City Jail since his initial arrest in 2009. (Id.) This agreement was reflected in the
Rule 11(c)(1)(C) provision in the plea addendum. (ECF No. 37.) Specifically, the addendum
states that the parties agreed to make a joint recommendation of 63 months as “an
appropriate and reasonable sentence” given the time Petitioner already served in the state
case. (ECF No. 37.) Petitioner also expressly agreed not to challenge his state sentence in any
way. (ECF No. 37 at 1-2.) On July 2, 2014, in accordance with the plea addendum, this
Court sentenced Petitioner to 63 months with credit for time spent in federal custody since
March 6, 2014. (ECF No. 38.)
STANDARD OF REVIEW
This Court recognizes that Petitioner is pro se and has accorded his pleadings liberal
construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 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)
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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).
ANALYSIS
I.

Motion to Reduce Sentence
Petitioner filed a Motion to Reduce Sentence Under 18 U.S.C. § 3582(c)(2). (ECF

No. 45.)3 Under 18 U.S.C. § 3582(c), “a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by the
Sentencing Commission” may file a motion asking the Court to reduce his or her sentence.
The Court may reduce the defendant’s term of imprisonment “after considering the factors
set forth in [18 U.S.C. § 3582(a)] to the extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the Sentencing Commission.” 18
U.S.C. § 3582(c)(2). Amendment 782 of the United States Sentencing Guidelines, which
became effective November 1, 2014, reduced the base offense levels in the Advisory
Guidelines under § 2D1.1 for cocaine base offenses by 2 levels. The Sentencing Commission
provided that Amendment 782 would apply retroactively. U.S.S.G. §§ lB1.10(d), (e)(1).

3 In response to Petitioner’s Motion to Reduce Sentence, the Clerk of this Court notified Petitioner that if the
Office of the Federal Public Defender (OFPD) determined that Petitioner qualified to seek a sentence
reduction under 18 U.S.C. § 3583(c)(2), the OFPD would file a motion on Petitioner’s behalf. (ECF No. 46.)
The OFPD never filed such motion.

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However, when a defendant pleads guilty pursuant to a Rule 11(c)(1)(C) plea
agreement, his or her eligibility for relief under § 3582(c) and U.S.S.G. Amendment 782 is
contingent upon the role of the defendant’s advisory Guidelines range in the agreement.
Freeman v. United States, 564 U.S. 522, 537-41 (2011) (Sotomayor, J., concurring). As Justice
Sotomayor explained, a defendant can demonstrate that his or her sentence was “based on”
a Guidelines range—and thus that he or she is eligible for § 3582(c) relief—if either of the
following exceptions applies: (1) the plea agreement “call[s] for the defendant to be
sentenced within a particular Guidelines sentencing range,” or (2) the plea agreement
“provide[s] for a specific term of imprisonment ... but also make[s] clear that the basis for
the specified term is a Guidelines sentence range applicable to the offense” of conviction,
provided that “the sentencing range is evident from the agreement itself.” Id. at 53839 (Sotomayor, J., concurring); see also United States v. Frazier, 531 Fed. App’x. 308, 309-10
(4th Cir. 2013) (delineating the two exceptions to Sotomayor’s general rule that an
11(c)(1)(C) plea is not eligible for § 3582(c)(2) reduction).
The parties did not reference Petitioner’s sentencing guidelines range in the initial
plea agreement or the addendum. (ECF Nos. 29, 37.) Given Petitioner’s criminal history
category of VI and offense level of 29, his Guidelines range was 151 to 188 months. (ECF
No. 32.) Comparing this range to both of the Rule 11(c)(1)(C) recommended sentences, it is
“clear that the basis” for the recommended 63 month term was not the 151 to 188 month
Guidelines range applicable to Petitioner’s offense to which he plead guilty. See Freeman, 564
U.S. at 539 (Sotomayor, J., concurring); see also Frazier, 531 Fed. App’x. at 310 (holding that
an 11(c)(1)(C) plea agreement was not eligible for reduction when the agreement did “not
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make clear that the specified term is a Guideline sentencing range applicable to the sentence
of conviction”). Accordingly, the record shows that the advisory Guidelines range for
Petitioner’s offense did not form the basis for the stipulated sentence in his Rule 11(c)(1)(C)
Plea Agreement. For this reason, Petitioner is not eligible for 18 U.S.C. § 3582 relief and his
Motion to Reduce Sentence Under 18 U.S.C. § 3582(c)(2) (ECF No. 45) is DENIED.
II.

Motion to Correct Sentence
a. Petitioner’s plea was knowing and voluntary
Petitioner’s first claim is that he did not knowingly and voluntarily plead guilty to

Possession with Intent to Distribute Cocaine because he did not possess crack cocaine.
(ECF No. 55 at 2.) Rather, Petitioner asserts that this Court “considered the 41.58 grams of
powder cocaine to be crack cocaine.” (Id.) First, Petitioner’s claim is procedurally defaulted.
It is well established that issues not raised on direct appeal are deemed procedurally
defaulted. See United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999); see also Johnson
v. United States, No. 2:13cv353, 2013 WL 12218789, at *3 (E.D. Va. Nov. 21, 2013)
(explaining that Petitioner’s “claim ha[d] been procedurally defaulted by Petitioner’s knowing
and intelligent waiver of his appeal rights”). Procedurally defaulted claims cannot be
considered in a subsequent § 2255 motion unless the movant can show that either “cause
and actual prejudice” resulted from the asserted errors, or that an “imminent miscarriage of
justice” would result from a denial of the collateral attack. Mikalajunas, 186 F.3d at 492-93.
Cause “must turn on something external to the defense, such as the novelty of the claim or a
denial of effective assistance of counsel.” Id. at 493. Alternatively, demonstrating

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“miscarriage of justice” requires a showing of the movant’s “actual innocence by clear and
convincing evidence.” Id. (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)).
Petitioner argues that counsel’s failure to file an appeal satisfies the cause
requirement. (ECF No. 2.) However, denial of effective assistance of counsel is only a
ground for cause if a petitioner shows that he or she actually asked counsel to file an appeal.
See United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993) (“[C]riminal defense attorney’s failure
to file a notice of appeal when requested by his client deprives the defendant of his Sixth
Amendment right to the assistance of counsel.”) (emphasis added); see also United States v.
Poindexter, 492 F.3d 263, 269 (4th Cir. 2007) (“In sum, we hold that an attorney is required to
file a notice of appeal when unequivocally instructed to do so by his client.”) (emphasis added).
Because Petitioner does not indicate or provide evidence that he asked his counsel to file an
appeal, Petitioner has not shown cause.
Even if Petitioner’s claim was not procedurally defaulted, it fails on the merits.
Throughout the record, Petitioner repeatedly confirms that he possessed crack cocaine. As
the United States Courts of Appeals for the Fourth Circuit explained in United States v.
Lemaster, 403 F.3d 216 (4th Cir. 2005), courts must apply a strong presumption that a
defendant’s declarations affirming a plea agreement in open court are true “because courts
must be able to rely on the defendant’s statements made under oath during a properly
conducted Rule 11 plea colloquy.” Id. at 221 (citing United States v. Bowman, 348 F.3d 408, 417
(4th Cir.2003)). Because of this presumption, declarations in plea agreements “present ‘a
formidable barrier in any subsequent collateral proceedings.’’’ Id. (quoting United States v.
White, 366 F.3d 291, 295-96 (4th Cir. 2004)).
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The plea agreement included a statement of facts that the Government would have
proven had the case gone to trial. (ECF No. 54-2.) Those facts included that the
Government recovered “a knotted plastic bag with a white rock substance suspected to be
cocaine” which was later analyzed and confirmed as “41.58 grams of cocaine.” (Id.)
Petitioner signed that he had “read this Statement of Facts and carefully reviewed every part
of it with [his] attorney” and that he understood and voluntarily agreed to it. (Id.) During
Petitioner’s Rearraignment, counsel for the Government restated these facts. (ECF No. 54-3
at 16-19.) When this Court asked Petitioner if he heard the facts and whether they were true,
Petitioner responded that the Government had told the truth and that he was pleading guilty
because he was guilty. (Id. at 19-20.) This Court then found that Petitioner knowingly and
voluntarily entered the plea with the advice of counsel. (Id. at 20.) Petitioner has not brought
forth any new evidence to contradict this record. Therefore, even if Petitioner’s claim was
not procedurally defaulted, the record shows that he knowingly and voluntarily pled guilty to
Possession with Intent to Distribute Cocaine.
b. Petitioner’s counsel was not ineffective
Petitioner argues that he received ineffective assistance of counsel because he was not
“appraised of all the information necessary in order to negotiate and accept a plea.”4 (ECF
No. 55 at 4.) Specifically, Petitioner refers to the state court events between Rearraignment
and Sentencing which led to the amended plea agreement. A freestanding claim of
ineffective assistance of counsel may properly be asserted for the first time in a § 2255

4 Although Petitioner’s initial Motion to Vacate (ECF No. 48) states blankly that “didn’t intelligently, willingly
(Plea),” Petitioner’s Response to Government’s Opposition (ECF No. 55) clarifies his argument as an
ineffective assistance of counsel claim.

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petition. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). 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 United States Court of Appeals for 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. 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 noted further 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).
Petitioner has failed to show that his counsel’s performance was unreasonable.
Petitioner signed the plea addendum acknowledging that he had read it and carefully
reviewed every part of it with his attorney. (ECF No. 37 at 3.) The addendum specifically
states that “[t]he parties agree that a sentence of imprisonment of 63 months, combined with
the period of imprisonment the Defendant has already served in the State Case, is an
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appropriate and reasonable sentence under the factors set forth in 18 U.S.C. § 3553(a). (ECF
No. 37 at 1.) He also signed that he understood the addendum, voluntarily agreed to it, and
was completely satisfied with the representation of his attorney. (ECF No. 37 at 3.) During
Petitioner’s Sentencing, the Government restated that given Petitioner’s time already served
in state court, the parties had reached a new agreement to recommend a 63 month sentence.
(ECF No. 54-5 at 3.) This Court asked Petitioner to review the addendum and confirm
whether he recognized it and whether it was his signature. (Id. at 5.) In response, Petitioner
confirmed that it was his signature and he had read the addendum and discussed it with
counsel. (ECF No. 54-5 at 5.)
Even if Petitioner’s claim met the performance prong, his claim fails the prejudice
prong of Strickland. Petitioner argues that he “would have received a better plea bargain had
counsel . . . argued . . . that petitioner’s state sentence was based on erroneous information
and that, had petitioner known this before he decided to plea guilty, the federal court may
have taken this into consideration.” (ECF No. 55). Contrary to Petitioner’s assertion, that is
what the parties and this Court did. The initial plea agreement contained a joint
recommendation of 63 to 132 months, which was already below the advisory guidelines
range of 151 to 188 months. (ECF No. 32 at 15.) After the state court proceeding, the plea
agreement addendum then recommended Petitioner only be sentenced to 63 months. This
Court granted the parties’ request and Petitioner was sentenced to 63 months. (ECF No. 54-

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5 at 13).5 Accordingly, Petitioner’s ineffective assistance of counsel claim is denied and
Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 48) is DENIED.
CONCLUSION
For the reasons stated above, Petitioner’s Motion for Extension of Time to File 28
U.S.C. § 2255 (ECF No. 41) is DENIED as MOOT; the Motion to Reduce Sentence Under
18 U.S.C. § 3582(c)(2) (ECF No. 45) is DENIED; the Motion to Vacate, Set Aside or
Correct Sentence (ECF No. 48) is DENIED; and Petitioner’s Motion to Appoint Counsel
(ECF No. 57) is DENIED.
Pursuant to Rule 11(a) of the Rules Governing Proceedings under 28 U.S.C. § 2255,
the court is required to issue or deny a certificate of appealability when it enters a final order
adverse to the applicant. A certificate of appealability is a “jurisdictional prerequisite” to an
appeal from the court’s earlier order. United States v. Hadden, 475 F.3d 652, 659 (4th Cir.
2007). A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the court
denies petitioner’s motion on its merits, a petitioner satisfies this standard by demonstrating
that reasonable jurists would find the court’s assessment of the constitutional claims
debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). Because reasonable jurists would not find Griffin’s
claims debatable, a certificate of appealability is DENIED.

5 In Petitioner’s Response, he also argues that counsel was ineffective for failing to seek a concurrent, rather
than a consecutive, sentence. (ECF No. 55.) However, as the parties and this Court agreed during sentencing,
once Petitioner was transferred to federal custody that issue became moot. (ECF No. 54-5 at 8.)

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A separate Order follows.

Dated: October 3, 2017
/s/
Richard D. Bennett
United States District Judge

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