Agnant v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 1/13/2017. (kw2s, Deputy Clerk)(c/m 1/13/17)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
GUY BORDES
AGNANT, JR.,

*
*

Petitioner,

Criminal No. RDB-14-0389
*

v.

Civil Action No. RDB-16-0680
*

UNITED STATES OF AMERICA,
*
Respondent.
*

*

*

*
*

*

*

*

*

*

*

*

*

*

MEMORANDUM OPINION
The pro se Petitioner Guy Bordes Agnant, Jr. (“Petitioner” or “Agnant”) 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. 255. Subsequently, this
Court sentenced Petitioner to 120 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. 369).
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. 369) is DENIED.

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 4), and the Government
dismissed the Conspiracy charge (Count 1) as to Petitioner.
1

1

BACKGROUND
Pursuant to a Plea Agreement with the Government, Petitioner Guy Bordes Agnant,
Jr. (“Petitioner” or “Agnant”) 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. 167. 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, “Agnant indicated
a desire to purchase in excess of five kilograms of cocaine.” Id.

Agnant then took

“substantial steps toward the commission of the crime of possession with intent to distribute
cocaine” by traveling to an arranged meeting location in Baltimore. Id. “Once [Agnant]
made it to the CD’s vehicle, he was placed under arrest.” Id.
Several additional individuals responded to Barrett’s calls and were subsequently
arrested when they travelled to meet him. In addition to Agnant, law enforcement arrested
Jermaine Cannady (“Cannady”), Antoine De-Marr Washington (“Washington”), Vincent
Cooper (“Cooper”), 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 Possess with Intent to Distribute Cocaine and Heroin “in or about
2

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 Agnant,
Washington, Cooper, Taylor, and Hopkins each pled guilty to one of the charged offenses,
in exchange for the Government dropping the other charge.

Specifically, Agnant,

Washington, Taylor, and Hopkins pled guilty to Attempted Possession with Intent to
Distribute Cocaine (Counts 2, 4, 9 & 10 respectively), and the Government dismissed Count
1, the Conspiracy charge, as to those Defendants. See Agnant J., p. 1, ECF No. 255;
Washington J., p. 1, ECF No. 250; 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 Agnant to 120
months imprisonment, followed by five years of supervised release. Agnant J., p. 2–3, ECF
No. 255.
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 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.
3

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
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
4

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
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
affects Agnant’s plea of guilty to Attempted Possession with Intent to Distribute 5 kilograms
or more of Cocaine (Count 4).
5

In his pending Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28
U.S.C. § 2255 (ECF No. 369), Agnant seeks to withdraw his guilty plea and proceed to trial.
He argues that his guilty plea was “unknowingly and unintelligently given.” Mot., p. 8, ECF
No. 369; Reply, ECF No. 394. Additionally, Agnant 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. 369; Reply, ECF No. 394. Further, 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), Agnant argues that his conviction “was premised
upon the Government’s misrepresentation of the facts” because the Government failed to
disclose the handwritten sheet (“ledger-sheets”) to Defense counsel prior to Agnant’s
acceptance of the Plea Agreement. Reply, ECF No. 394.
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
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)).
6

DISCUSSION
I.

Guilty Plea
Petitioner argues that his guilty plea was “unknowingly and unintelligently given”

because it was “based upon his attorney’s gross misrepresentation of the facts.” Mot., p. 8,
ECF No. 369. 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-the-record inquiry.” Savino v. Murray, 82 F.3d 593, 603 (4th Cir. 1996)
(referencing Boykin, 395 U.S. at 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. “[S]tatements of fact by a
defendant in Rule 11 proceedings may not ordinarily be repudiated, and, similarly findings by
a sentencing court in accepting a plea constitute a formidable barrier to attacking the plea.”
United States v. Wilson, 81 F.3d 1300, 1308 (4th Cir. 1996) (quoting United States v. Lambey, 974
F.2d 1389, 1395 (4th Cir. 1992)) (quotation marks omitted). Finally, “in the absence of
extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy
is conclusively established, and a district court should, without holding an evidentiary
hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the
sworn statements.” United States v. Lemaster, 403 F.3d 216, 221–22 (4th Cir. 2005).
Petitioner’s claim that his guilty plea was “unknowingly and unintelligently given” is
without merit. Mot., p. 8, ECF No. 369. On the record at Petitioner’s Rearraignment
7

hearing, this Court carefully confirmed that Petitioner understood the nature of the charge
to which he was pleading guilty. This Court clarified with Petitioner, on the record, the
rights he would waive by pleading guilty, including the right to a trial. Rearraignment Tr., p.
25, ECF No. 161.

Prior to accepting Petitioner’s guilty plea, this Court thoroughly

questioned Petitioner about his intention to plead guilty. Id. at 4–30. As discussed infra,
Petitioner stated on the record that he was fully satisfied with his counsel’s assistance
throughout the guilty plea process and understood the terms of the Plea Agreement. Id. at 6–
17. When asked whether he understood the offense to which he was pleading guilty,
Petitioner responded, “[y]es sir.” Id. at 11.
Petitioner makes no suggestion in the pending Motion that his guilty plea was not in
full compliance with Rule 11 of the Federal Rules of Criminal Procedure, nor has he
challenged the above-referenced record of his Rule 11 procedings. The Fourth Circuit has
made clear that “conclusory post-plea assertions that [a] plea was not knowing and voluntary
… fail to overcome the barrier of the sworn statements made at [a] Rule 11 hearing.” United
States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). For these reasons, Petitioner’s first
argument fails.
II.

Ineffective Assistance of Counsel Claim
Petitioner claims that his Sixth Amendment right to effective assistance of counsel

was violated. Mot., p. 9–22, ECF No. 369. Specifically, he claims that his counsel’s failure to
argue that his conspiracy charge was based on the “uncorroborated testimony” of an
accomplice prejudiced his defense. Id. at 9. Additionally, Petitioner objects to his counsel’s
failure to argue that there was a “fatal variance between the facts alleged in the indictment
8

and the proof at the Petitioner’s plea hearing.” Id. at 22.
To establish ineffective assistance of counsel, Petitioner must satisfy the two-pronged
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 fell 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 “deprive[d] . . .
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 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).
In this case, Petitioner is incapable of demonstrating ineffective assistance because he
explicitly indicated on the record at his Rearraignment that he was satisfied with his counsel’s

9

representation and that he was voluntarily pleading guilty to Attempted Possession with
Intent to Distribute Cocaine (Count 4). This Court asked Petitioner the following questions:
THE COURT:
DEFENDANT AGNANT:
THE COURT:

DEFENDANT AGNANT:
THE COURT:
DEFENDANT AGNANT:
THE COURT:
DEFENDANT AGNANT:
THE COURT:

DEFENDANT AGNANT:

Mr. Agnant, do you understand that you’re
now under oath?
Yes.
Are you fully satisfied with Mr. Woods
and his representation and the advice
which he’s given you?
Yes, sir.
Is there anything you have asked Mr.
Woods to do which he has not done?
No, sir.
Are you pleading guilty on your own freely
and because you are in fact guilty?
Yes, sir.
Are you satisfied, then, that you understand
the possible consequences of your plea of guilty
here this afternoon?
Yes, sir.

Rearraignment Tr., p. 6, 8, 11, and 17, ECF No. 161.
Petitioner repeatedly affirmed his understanding of the Plea Agreement, his rights,
and the charge to which he was pleading guilty, and Petitioner indicated that he was satisfied
with his attorney’s representation. Id. “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 Circuit instructed

10

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 argument with respect to the conspiracy charge is
groundless. Petitioner pled guilty only to attempted possession with the intent to distribute
five kilograms or more of cocaine (Count 4). See Plea Agreement, ECF No. 167. The
conspiracy charge (Count 1) against Petitioner was dismissed pursuant to the Plea
Agreement. See Agnant J., p. 1, ECF No. 255. Petitioner stipulated in the Plea Agreement to
the facts the Government would need to prove at trial with respect to Attempted Possession
with Intent to Distribute. Plea Agreement, Attachment A, p. 8–9, ECF No. 167. These facts
were read into the record at Petitioner’s Rearraignment and, when asked whether that
summary of facts was accurate, Petitioner responded on the record, “[y]es, sir.”
Rearraignment Tr., p. 26–30, ECF No. 161. As discussed supra, Petitioner stated on the
record before this Court that he was fully satisfied with his counsel’s representation. Id. at 8.
He subsequently entered a guilty plea and affirmed on the record that he had committed the
offense charged in Count 4 of the Indictment. Id. at 30. Accordingly, Petitioner’s second
argument for post-judgment relief is without merit.
III.

Misjoinder Claim
Petitioner claims that the defendants in this case were improperly joined. Mot., p. 23,

ECF No. 369. Specifically, he argues that there was never a single conspiracy, but instead
multiple conspiracies between Barrett and each of the nine defendants. Id. at 24–27; Reply,
p. 3, ECF No. 394. However, Petitioner’s misjoinder argument has no bearing on his guilty
plea to the individual charge of Attempted Possession with Intent to Distribute Cocaine
11

(Count 4).2 As noted supra, Petitioner stipulated to the facts of this case, recited by the
Government at his Rearraignment, which were sufficient to prove the Attempted Possession
charge. Rearraignment Tr., p. 26–30, ECF No. 161. The Conspiracy charge (Count 1)
against Petitioner was dismissed. Petitioner knowingly and voluntarily pled guilty to Count
4. Therefore, Petitioner’s third argument for post-judgment relief fails.
IV.

The Single Handwritten Sheet
In his Reply brief, Petitioner contends that “the factual and legal basis to support [his]

conviction was premised upon the government’s misrepresentation of the facts.” Reply, p. 2,
ECF No. 394. Specifically, Petitioner argues that the Government perpetrated a “fraud
upon the court” by failing to present the “ledger-sheets” to the defense prior to Petitioner’s
guilty plea. Id. He reiterates that his plea was “unknowingly and unintelligently given”
because of his attorney’s and the government’s misrepresentation of the facts. Id. at 1–2.
As discussed supra, this Court has conducted a hearing on Defendants Cannady,
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).

Petitioner inaccurately states that he “[pled] guilty to the overall conspiracy,” but Petitioner pled guilty solely
to the Attempted Possession charge (Count 4).
2

12

Because Petitioner pled guilty only to Attempted Possession with Intent to Distribute
Cocaine (Count 4), 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

“expressed an interest to purchase 5 kilograms of cocaine” and travelled to a meeting
location in Baltimore, taking “substantial steps toward the commission of the crime of
possession with intent to distribute cocaine,” and that “[b]ut for Agnant’s arrest, as well as
that of the CD previously, the crime would have been completed.” Plea Agreement,
Attachment A, p. 9, ECF No. 167. Accordingly, Petitioner is not entitled to post-judgment
relief.
CONCLUSION
For the foregoing reasons, Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence, pursuant to 28 U.S.C. § 2255 (ECF No. 369) is DENIED.3
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
Accordingly, Petitioner’s Motion to Appoint Counsel (ECF No. 400) to aid him in advancing the arguments
addressed herein is also DENIED.
3

13

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.
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:

January 13, 2017
/s/
Richard D. Bennett
United States District Judge

14

_