Washington v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 12/27/2016. (krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANTOINE DE-MARR
WASHINGTON,

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Petitioner,

Criminal No. RDB-14-0389

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v.

Civil Action No. RDB-16-0429
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UNITED STATES OF AMERICA,

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Respondent.
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MEMORANDUM OPINION
The pro se Petitioner Antoine De-Marr Washington (“Petitioner” or “Washington”)
pled guilty before this Court to Attempted Possession with the Intent to Distribute Five
Kilograms or More of Cocaine, in violation of 21 U.S.C. § 846.1 J., p. 1, ECF No. 250.
Subsequently, this Court sentenced Petitioner to 144 months imprisonment, followed by five
years of supervised release. Id. at 2-3. Currently pending before this Court is Petitioner’s
Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 (ECF No.
367).

Having reviewed the parties’ submissions, this Court finds that no hearing is

necessary.

See Local Rule 105.6 (D. Md. 2016).

For the reasons discussed herein,

Petitioner’s Motion to Vacate (ECF No. 367) is DENIED.

1 As discussed infra, Petitioner was one of nine Defendants charged via a ten-count Indictment in this case
(ECF No. 70). The Indictment charged all nine Defendants with Conspiracy to Distribute and Possess with
Intent to Distribute Cocaine and Heroin, in violation of 21 U.S.C. § 846 (Count 1) and charged each
Defendant with one additional count of Attempted Possession with Intent to Distribute Heroin and/or
Cocaine, in violation of 21 U.S.C. § 846 (Counts 2-10). Pursuant to a Plea Agreement with the Government,
Petitioner pled guilty to Attempted Possession with Intent to Distribute (Count 2), and the Government
dismissed the Conspiracy charge (Count 1) as to Petitioner.

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BACKGROUND
Pursuant to a Plea Agreement with the Government, Petitioner Antoine De-Marr
Washington (“Petitioner” or “Washington”) has “stipulate[d] and agree[d] that if this case
had proceeded to trial, the Government would have proven the following facts beyond a
reasonable doubt:”
On August 6, 2014, the Federal Bureau of Investigation’s (“FBI”) Safe Streets Squad
arrested an individual [referred to as “CD” in the Plea Agreement, but subsequently
identified as Michael Barrett (“Barrett”)] as he attempted to take possession of multiple
kilograms of cocaine. Plea Agreement, Attachment A, p. 8, ECF No. 154. Subsequently,
Barrett agreed to cooperate with the FBI and placed a series of consensual calls to several of
his “customers.” Id. On August 11, 2014, “[a]s a result of” Barrett’s calls, Washington and
another individual [subsequently identified as Vincent Cooper (“Cooper”)] travelled to a
meeting location in Baltimore, “where they intended to purchase cocaine.” Id. Washington
and the other individual “had with them more than $223,000 to be used toward the purchase
of 5 kilograms of cocaine.” Id. Both Washington and the other individual were arrested. Id.
Several additional individuals responded to Barrett’s calls and were subsequently
arrested when they travelled to meet him. In addition to Washington and Cooper, law
enforcement arrested Jermaine Cannady (“Cannady”), Guy Bordes Agnant, Jr. (“Agnant”),
Cornell Dion Brown, Jr. (“Brown”), Dominic William Parker (“Parker”), Ronald Timothy
Sampson (“Sampson”), Donte Eugene Taylor (“Taylor”), and Tavon Hopkins (“Hopkins”)
(collectively “Defendants”).

On August 21, 2014, a Grand Jury returned a ten-count

Indictment (ECF No. 70) charging all nine Defendants with Conspiracy to Distribute and
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Possess with Intent to Distribute Cocaine and Heroin “in or about November 2013 through
in or about August 2014,” in violation of 21 U.S.C. § 846 (Count 1), and charging each
Defendant with one additional count of Attempted Possession with Intent to Distribute
Heroin and/or Cocaine, in violation of 21 U.S.C. § 846 (Counts 2-10).
Pursuant to Plea Agreements with the Government, Defendants Washington,
Agnant, Cooper, Taylor, and Hopkins each pled guilty to one of the charged offenses, in
exchange for the Government dropping the other charge. Specifically, Washington, Agnant,
Taylor, and Hopkins pled guilty to Attempted Possession with Intent to Distribute Cocaine2
(Counts 2, 4, 9 & 10 respectively), and the Government dismissed Count 1, the Conspiracy
charge, as to those Defendants. See Washington J., p. 1, ECF No. 250; Agnant J., p. 1, ECF
No. 255; Taylor J., p. 1, ECF No. 252; Hopkins J., p. 1, ECF No. 231. Cooper pled guilty to
Conspiracy (Count 1), and the Government dismissed the Attempted Possession charge
against Cooper (Count 7). See Cooper J., p. 1, ECF No. 220. All five Defendants were
sentenced by this Court. This Court sentenced Washington to 144 months imprisonment,
followed by five years of supervised release. Washington J., p. 2-3, ECF No. 250.
The remaining four Defendants, Cannady, Brown, Parker, and Sampson, went to trial
in March of 2015. Following a nine-day jury trial in this Court, Defendants Cannady,
Brown, Parker, and Sampson were found guilty on all counts, including Conspiracy to
Distribute and Possess with Intent to Distribute Cocaine (Count 1) and Attempted
Possession with Intent to Distribute Cocaine (Counts 3, 5, 6 & 8 respectively). Verdict

2 Count 2 of the Indictment charged Washington with Attempted Possession with Intent to Distribute Cocaine
and Heroin. However, Washington pled guilty only to Attempted Possession with Intent to Distribute Cocaine.
All references to heroin were excluded from the Plea Agreement.

3

Sheet, ECF No. 202 [SEALED].

Michael Barrett testified as a key witness for the

Government at trial. All Defendants were subsequently sentenced by this Court.
In January of 2016, counsel for the Government submitted to Defense counsel a
single handwritten sheet of paper (ECF No. 373-1) that they “had not seen previously,”
although it “had been seized by the FBI [prior to trial] during the execution of a search
warrant at Michael Barrett’s residence.” Letter, p. 1, ECF No. 373-1. The Government
spoke to Barrett about the handwritten sheet, and he “advised that the document reflected
notations as to payments received for portions of drugs sold and any money shortages
regarding those payments.” Id.
Subsequently, Defendants Cannady, Brown, Parker, and Sampson filed a Joint
Second Motion for New Trial (ECF No. 373) on the grounds that the Government’s failure
to disclose the handwritten sheet prior to trial violated Brady v. Maryland, 373 U.S. 83, 87
(1963) and Giglio v. United States, 405 U.S. 150, 154 (1972). To prove a Brady violation, a
defendant must show that the undisclosed evidence was (1) favorable to the defendant; (2)
material; and (3) that the prosecution had the material and failed to disclose it. Moore v.
Illinois, 408 U.S. 786, 794-95 (1972), accord, United States v. Horton, 693 F.3d 463, 470 (4th
Cir. 2012); United States v. King, 628 F.3d 693, 701-02 (4th Cir. 2011).
On December 13, 2016, this Court conducted a hearing on the Defendants’ Joint
Second Motion for New Trial. Following several hours of argument by both Defense
counsel and Government counsel, this Court ultimately granted Defendants’ Cannady,
Brown, Parker, and Sampson’s Joint Second Motion for New Trial (ECF No. 373) and
vacated its prior Judgments against those Defendants, pursuant to Rule 33 of the Federal
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Rules of Criminal Procedure. See Order, ECF No. 403. For the reasons stated on the record
at the conclusion of the December 13, 2016 hearing, this Court held that a Brady violation
had occurred, but only with respect to Count 1, the Conspiracy charge against all
Defendants. Specifically, this Court found that the Government had the handwritten sheet
(ECF No. 373-1) in its possession prior to trial, yet failed to disclose it to Defendants. This
Court found that the handwritten sheet was both “favorable” and “material,” but only with
respect to the charged Conspiracy to Distribute and Possess with Intent to Distribute (Count
1). This Court concluded that the handwritten sheet was fundamental to the Defense’s
ability to challenge Barrett’s testimony as to the existence of the charged conspiracy. This
Court did not find that the handwritten sheet was both “favorable” and “material” with
respect to Attempted Possession with Intent to Distribute Cocaine (Counts 3, 5, 6 & 8).
At the hearing on the Joint Second Motion for New Trial (ECF No. 373) filed by the
Defendants Cannady, Brown, Parker, and Sampson, this Court noted that there had been
previous motions to sever Count 1, the Conspiracy charge, from Counts 3, 5, 6 & 8, in
which those four Defendants were each individually charged with one count of Attempted
Possession with Intent to Distribute Heroin and/or Cocaine. In light of the Brady violation
as to the Conspiracy charge, this Court concluded that it was infeasible to order a new trial
only with respect to the charged Conspiracy, but not also with respect to the individual
charges of Attempted Possession with Intent to Distribute. Accordingly, this Court vacated
its prior Judgments in their entirety and ordered a new trial as to all counts. Issues of
severance as to Defendants and/or individual counts may be addressed prior to the new trial
for the Defendants Cannady, Brown, Parker, and Sampson. This Court’s ruling in no way
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affects Washington’s plea of guilty to Attempted Possession with Intent to Distribute
multiple kilograms of Cocaine.
In his pending Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28
U.S.C. § 2255 (ECF No. 367), Washington argues that his court-appointed counsel rendered
ineffective assistance, in violation of his rights under the Sixth Amendment to the United
States Constitution. See Mot., ECF No. 367; Reply, ECF No. 387. Additionally, although he
did not proceed to trial in this case and was not a party to Defendants’ Joint Second Motion
for New Trial (ECF No. 373), Washington argues that the recently disclosed handwritten
sheet constitutes “new evidence . . . so exculpatory in nature that [he] should now be allowed
to withdraw his guilty plea and go to trial.” Reply, p. 11, ECF No. 387. Petitioner further
contends that he is entitled to bail or release on bond pending this Court’s ruling on the
pending Motion to Vacate. Mot., p. 7, ECF No. 367.
STANDARD OF REVIEW
Pro se filings are “liberally construed” and are “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)(citation
omitted). Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside or
correct his sentence where: (1) “the sentence was imposed in violation of the Constitution or
laws of the United States,” (2) the court lacked “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.” 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

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defect which inherently results in a complete miscarriage of justice.’ ” United States v.
Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
DISCUSSION
In order to establish ineffective assistance of counsel, Petitioner must satisfy the twopronged test established in Strickland v. Washington, 466 U.S. 668, 671 (1984). First, Petitioner
must show that his counsel’s performance was deficient such that it fell below an “objective
standard of reasonableness.” Id. at 688. In assessing whether counsel’s performance was
deficient, courts adopt a “strong presumption” that an attorney’s actions fall within the
“wide range of reasonable professional assistance.” Id. at 689. Second, Petitioner must
show that his counsel’s performance was prejudicial, meaning the defendant was “depriv[ed]
. . . of a fair trial.” Id. at 687. To demonstrate such prejudice, Petitioner must show there
was a “reasonable probability that, but for counsel’s [alleged] unprofessional errors, the
result of the proceeding[s] would have been different.” Id. at 694. Both of these prongs
must be satisfied for the Petitioner to obtain the relief he is seeking. Id. at 687.
In the plea bargaining context, “claims of ineffective assistance of counsel . . . are
governed by the two-part test set forth in Strickland.” Missouri v. Frye, 132 S. Ct. 1399, 1405
(2012) (citing Hill, 474 U.S. at 57). However, the “prejudice prong of the test is slightly
modified” in that Petitioner must show “there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”
Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) (internal quotation marks omitted); see
also id. (quoting Hill, 474 U.S. at 59).

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I.

Petitioner’s Guilty Plea
Petitioner first argues “that his decision to enter a plea of guilty in this case, as

opposed to seeking an order dismissing the indictment, was the product of ineffective
assistance of counsel.” Mot., p. 3, ECF No. 367. Specifically, he objects that his courtappointed counsel should have filed a motion to dismiss the Indictment on the grounds that
the Government “lied to the Grand Jury” by “inform[ing] them that Petitioner had agreed
and attempted to distribute and possess with the intent to distribute heroin.” Id. (emphasis
added). Petitioner posits that he never once “discussed heroin during the conversations he
had with [Michael Barrett].” Id. Petitioner contends that “[h]ad counsel . . . apprised [him]
that such a motion was an option, [he] would have elected to proceed with a motion to
dismiss the [I]ndictment as opposed to accepting the Government’s unfavorable plea offer.”
Id. at 4. For these reasons, he contends that his guilty plea was “unknowing, involuntary,
and a wholly unintelligent choice.” Id. at 2.
A valid guilty plea requires an “affirmative showing [by the defendant] that [the plea]
was intelligent and voluntary.” Boykin v. Alabama, 395 U.S. 238, 242 (1969). This affirmative
showing cannot come from a “silent record,” but rather must involve “a thorough, on-therecord inquiry.” Savino v. Murray, 82 F.3d 593, 603 (4th Cir. 1996) (referencing Boykin, 395
U.S. 243-44).

The United States Court of Appeals for the Fourth Circuit has long

recognized that “in-court representation[s] from the defendant are treated as conclusive with
regard to the validity of the plea and may not be controverted later.” Id. at 603. “Thus, in
the absence of extraordinary circumstances, allegations in a § 2255 motion that directly
contradict the petitioner’s sworn statements made during a properly conducted Rule
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11 colloquy are always ‘palpably incredible’ and ‘patently frivolous or false.’ ” United States v.
Lemaster, 403 F.3d 216, 221 (4th Cir. 2005).
In this case, Petitioner is incapable of demonstrating ineffective assistance because he
explicitly indicated on the record at his Rearraignment proceedings that he was satisfied with
his counsel’s representation and that he was voluntarily pleading guilty to Attempted
Possession with Intent to Distribute Cocaine (Count 2). The record reads as follows:
THE COURT:

Mr. Washington, do you understand that
you’re now under oath?

DEFENDANT WASHINGTON: Yes.
THE COURT:

Are you fully satisfied with Mr. Purpura
and his representation . . . are you satisfied
with the advice he’s given you?

DEFENDANT WASHINGTON: Yes.
THE COURT:
Are you pleading guilty on your own freely
because you are, in fact, guilty?
DEFENDANT WASHINGTON: Yes.
THE COURT:

Are you satisfied, then, that you understand all
the possible consequences of your plea of guilty?

DEFENDANT WASHINGTON: Yes.
Rearraignment Tr., p. 5, 7, 10, and 16, ECF No. 374.
Additionally, the record indicates that counsel worked diligently to ensure Petitioner
understood the implications of accepting the plea deal. Petitioner’s counsel stated, “I can tell
the Court that I met with Mr. Washington over a dozen times . . . We reviewed any legal
issues which may be raised [in this case].” Id. at 17. “The Petitioner’s colloquy . . . more
than satisfies the concerns articulated in Boykin” regarding the importance of ensuring the
voluntary nature of a guilty plea. Savino, 82 F.3d at 603. In the Lemaster case, the Fourth
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Circuit instructed district judges to “dismiss any § 2255 motion that necessarily relies on
allegations that contradict the [Petitioner’s] sworn statements.” Lemaster, 403 F.3d at 221.
Furthermore, Petitioner’s contention that the Government “lied to the Grand Jury”
by informing them that Petitioner had attempted to possess heroin is without merit. As
discussed supra, the Indictment in this case charged Defendants with Attempted Possession
with Intent to Distribute Cocaine and Heroin. However, Washington pled guilty only to
Attempted Possession with Intent to Distribute Cocaine. References to heroin were excluded
from the Plea Agreement. The fact that cocaine and heroin were both charged does not
entitle Petitioner to post-judgment relief, nor was it grounds for dismissal of the Indictment.
The United States Court of Appeals for the Fourth Circuit has explained that in instances
where the government is charging an individual for violating a statute that is worded in the
disjunctive (“or”), “federal pleading requires the government to charge in the conjunctive
[“and”].” United States v. Montgomery, 262 F.3d 233, 242 (4th Cir. 2001) (internal citation
omitted); see also United States v. Perry, 560 F.3d 246, 256 (4th Cir. 2009). “The general rule is
that when a jury returns a guilty verdict on an indictment charging several acts in the
conjunctive, . . . the verdict stands if the evidence is sufficient with respect to any one of the acts
charged.” Turner v. United States, 396 U.S. 398, 420 (1970). As discussed supra, Petitioner has
entered a valid guilty plea with respect to Attempted Possession with Intent to Distribute
Cocaine (Count 2) and has stipulated to the facts the Government would be able to prove at
trial with respect to that offense. For these reasons, Petitioner’s first argument fails.3

3 Currently pending before this Court is Petitioner’s Motion for a Copy of the Grand Jury Minutes at
Government’s Expense[ ] (ECF No. 380), in which he requests a copy of the Grand Jury Minutes “to assist
[him] in pointing out the specific perjury claims . . . he alleges.” Mot., p. 2, ECF No. 380. For the reasons

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II.

Petitioner’s Arrest & Evidence Seized Incident to Petitioner’s Arrest
Additionally, Petitioner objects that his court-appointed counsel “fail[ed] to move to

suppress evidence seized incident to [his] arrest and the search of his car” on the night of his
arrest. Mot., p. 6, ECF No. 367. Petitioner contends that “[b]oth the search of the vehicle
and the preceding arrest were without reasonable suspicion or probable cause.” Id.
Contrary to Petitioner’s assertions, Mr. Purpura did in fact file a Motion to Suppress
(ECF No. 107) on the precise grounds that Petitioner describes. Subsequent to Petitioner’s
guilty plea, this Court denied that Motion. See Order, ECF No. 176. Additionally, as
discussed supra, Petitioner stated on the record before this Court that he was fully satisfied
with Mr. Purpura’s representation. He subsequently entered a guilty plea and affirmed on
the record that he had committed the offense charged in Court 2 of the Indictment.
Accordingly, his second argument for post-judgment relief fails.
III.

The Single Handwritten Sheet
In his Reply brief, Petitioner further contends that the Government’s recent

disclosure of “ ‘handwritten documents’ . . . which had not previously been disclosed to the
defense at the [D]efendants’ trial . . .” renders his guilty plea “unknowing and involuntary.”
Reply, p. 12-13, ECF No. 387. Petitioner contends that had he been aware of this evidence
prior to entering his guilty plea, “[t]his could have been another major piece of exculpatory
evidence which would have encouraged [him] to go to trial.” Id. at 13.
As discussed supra, this Court has conducted a hearing on Defendants Cannady,

stated supra, Petitioner’s allegations are without merit. Accordingly, Petitioner’s Motion for a Copy of the
Grand Jury Minutes at Government’s Expense[ ] (ECF No. 380) is DENIED.

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Brown, Parker, and Sampson’s Joint Second Motion for New Trial (ECF No. 373) on the
grounds that the Government’s failure to disclose this handwritten sheet prior to trial violated
Brady v. Maryland, 373 U.S. 83, 87 (1963) and Giglio v. United States, 405 U.S. 150, 154 (1972).
Following that hearing, this Court held that a Brady violation had occurred, but only with
respect to Count 1, the Conspiracy charge against all Defendants. This Court did not find that
the handwritten sheet was both “favorable” and “material” with respect to Attempted
Possession with Intent to Distribute Cocaine (Counts 3, 5, 6 & 8).
Because Petitioner pled guilty only to Attempted Possession with Intent to Distribute
Cocaine (Count 2), he cannot demonstrate that he was prejudiced in any way by the
Government’s non-disclosure of the handwritten sheet. At the December 13, 2016 hearing,
this Court found that the handwritten letter was only “favorable” and “material” to the
extent that it would have aided the Defense in challenging the existence of the charged
conspiracy. As discussed supra, Petitioner has stipulated to the facts the Government would
prove with respect to the Attempted Possession charge. Petitioner has stipulated that he and
Cooper travelled to a meeting location in Baltimore, “where they intended to purchase
cocaine,” and that they “had with them more than $223,000 to be used toward the purchase
of 5 kilograms of cocaine.” Plea Agreement, Attachment A, p. 8, ECF No. 154.
Accordingly, Petitioner is not entitled to post-judgment relief in light of the recently
disclosed handwritten sheet.
IV.

Petitioner’s Request for Release on Bond
Petitioner requests that this Court “release [him] on bond pending the disposition of

the [pending Motion to Vacate] on the merits.” Mot., p. 7, ECF No. 367. “Before a
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prisoner may be released on bail pending a collateral attack on his conviction, he must show
substantial constitutional claims on which he has a high probability of success, and
exceptional circumstances making a grant of bail necessary for the habeas remedy to be
effective.” United States v. Eliely, 276 F. App’x 270 (4th Cir. 2008). As discussed supra, all of
Petitioner’s arguments are without merit. He has failed to “show substantial constitutional
claims.” Accordingly, his argument for release on bond is without merit. For these reasons,
his pending Motion to Vacate (ECF No. 367) is DENIED.
CONCLUSION
For the foregoing reasons, Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence, pursuant to 28 U.S.C. § 2255 (ECF No. 367) is DENIED, and Petitioner’s Motion
for a Copy of the Grand Jury Minutes at Government’s Expense[ ] (ECF No. 380) is also
DENIED.
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 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 a 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 Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003); Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Because reasonable jurists would not find Petitioner’s
claims debatable, a certificate of appealability is DENIED.
A separate Order follows.
Dated:

December 27, 2016
/s/
Richard D. Bennett
United States District Judge

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