Johnson v. USA - 2255
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 11/8/2017. (krs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Criminal Action No. ELH-13-0261
Related Civil No.: ELH-16-1903
UNITED STATES OF AMERICA,
On May 23, 2013, Petitioner Darrell Johnson, a/k/a/ Richard Morris, III, was indicted on
charges of conspiracy to distribute and possess with the intent to distribute five hundred grams or
more of cocaine, in violation of 21 U.S.C. § 846 (Count One), and possession with intent to
distribute five hundred grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count
Two). See ECF 1. Petitioner entered a plea of guilty on September 25, 2013, to Count One of
the Indictment (ECF 38), pursuant to a Plea Agreement.
See ECF 39; see also ECF 88.
Sentencing was held on February 12, 2015. ECF 64. Judge William D. Quarles, Jr., to whom
the case was then assigned, sentenced Johnson to a term of 48 months imprisonment. Id.
Judgment was entered on February 18, 2015. ECF 65.1 Petitioner did not note an appeal.
On June 6, 2016, Johnson filed a Motion to Vacate, Set aside, or Correct his sentence
(“Petition”), pursuant to 28 U.S.C. § 2255. ECF 71. The government opposes the Petition (ECF
86) and has submitted exhibits. See ECF 88; ECF 89; ECF 90. No reply has been docketed.
In June 2016, the case was reassigned from Judge Quarles to me, due to the retirement
of Judge Quarles.
Under 28 U.S.C. § 2255(b), a hearing is required “[u]nless the motion and the files and
the records of the case conclusively show that the prisoner is entitled to no relief....” This is such
a case; no hearing is necessary. For the reasons that follow, I shall deny the Petition.
The Plea Agreement contains a Statement of Facts (ECF 39, ¶ 6(a); ECF 88 ¶ 6(a)), to
which Petitioner agreed. See ECF 39 at 8; ECF 88 at 8. The facts were also set forth on the
record at Petitioner’s Rule 11 guilty plea proceeding. See ECF 89 at 12-13. And, while under
oath, Johnson agreed to these facts. Id. at 14. They are as follows:
Beginning sometime in 2012 and continuing through January 14, 2013 and
after, the Defendant, Richard Morris [a/k/a Darrell Johnson], conspired with
others, including, but not limited to William Barnett and Jermel Davis, to obtain
quantities of heroin and cocaine from sources in North Carolina. These sources
were related to Jermel Davis and provided wholesale quantities of cocaine and
heroin to Davis, Barnett, and the Defendant. Davis, Barnett, and the Defendant
would travel to North Carolina and return with the wholesale quantities of heroin
and cocaine, which would be converted by them (Barnett, Davis or the Defendant)
into cocaine base, for street level distribution in Baltimore, Maryland. During the
period of the conspiracy, the Drug Enforcement Administration (DEA) utilized
wire and electronic interception of William Barnett’s cellular phone. During
intercepted conversation [sic], the Defendant was intercepted speaking with
Barnett and discussing the quality of the drugs provided and the distribution of
both wholesale and street level quantities of the drugs. On January 14, 2013,
based on conversations intercepted, pursuant to those wires, the DEA believed
that Davis, Barnett, and the Defendant would be returning from North Carolina
with a fresh supply of drugs. The DEA notified the Maryland State Police, who
executed a traffic stop of a vehicle driven by Barnett and occupied by Davis and
the Defendant. A canine gave a positive alert from the presence of drugs in the
vehicle. The vehicle was searched and found to contain at least 500 grams of
The Government’s evidence consists of, among other things, the testimony
of cooperating witnesses, seizures of narcotics, narcotics paraphernalia and other
evidence pursuant to search warrants and electronic surveillance, including the
monitoring of telephone conversations occurring over the Defendant’s and others’
The following colloquy at Petitioner’s guilty plea proceeding is also relevant, ECF 89 at
THE COURT: At the time of this offense that you’re pleading guilty to, were you
on parole or probation?
THE DEFENDANT: Yes, sir.
THE COURT: Which was it: Parole, or probation?
THE DEFENDANT: Both.
THE COURT: You should realize, by pleading guilty this afternoon, you may be
admitting a violation of parole. You also may be admitting a violation of
probation. This proceeding is not going to fix those problems if, in fact, they are
problems. You’re going to have to take that matter up with the Parole
Commission or with the Judge who has you on probation. Do you understand
THE DEFENDANT: Yes, sir.
Additional facts are included in the Discussion.
28 U.S.C. § 2255
Pursuant to 28 U.S.C. § 2255(a), a prisoner in federal custody may “move the court
which imposed the sentence to vacate, set aside or correct the sentence,” but only on certain
grounds: “that the sentence was imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack. . . .” See also United States v. Newbold, 791 F.3d 455, 459 (4th Cir. 2015).
Collateral attack is not a substitute for direct appeal; failure to raise certain issues on
direct appeal may render them procedurally defaulted on post-conviction review. United States
v. Frady, 456 U.S. 152, 165 (1982); accord Bousely v. United States, 523 U.S. 614, 630 (1998).
As a general rule, a petitioner who fails to raise a claim on direct appeal is barred from raising
the claim on collateral review. Sanchez–Llamas v. Oregon, 548 U.S. 331, 350–51 (2006).
However, this bar generally does not apply to claims pertaining to ineffective assistance of
counsel. See, e.g., Massaro v. United States, 538 U.S. 500, 503–04 (2003).
Under 28 U.S.C. § 2255(b), the post-conviction court must hold a hearing “[u]nless the
motion and the files and records conclusively show that the prisoner is entitled to no relief. . . .”
United States v. LeMaster, 403 F.3d 216, 220-23 (4th Cir. 2005); see, e.g., United States v.
White, 366 F.3d 291, 302 (4th Cir. 2004). Courts have determined that a hearing is not necessary
where “the motion . . . fail[s] to allege sufficient facts or circumstances upon which the elements
of constitutionally deficient performance might properly be found [or] where the defendant has
failed to present any affidavits or other evidentiary support for the naked assertions contained in
his motion.” United States v. Taylor, 139 F.3d 924, 933 (D.C. Cir. 1998) (internal quotation
marks and citation omitted); accord United States v. McGill, 11 F.3d 223, 225–26 (1st Cir.
1993). On the other hand, a hearing is generally “required when a movant presents a colorable
Sixth Amendment claim showing disputed material facts and a credibility determination is
necessary to resolve this issue.” United States v. Robertson, 219 Fed. App’x 286, 286 (4th Cir.
2007); see also United States v. Ray, 547 Fed. App’x 343, 345 (4th Cir. 2013).
In resolving the Petition, I am mindful that a self-represented litigant is generally “held to
a ‘less stringent standard[ ]’ than is a lawyer, and the Court must liberally construe his claims, no
matter how ‘inartfully’ pled.” Morrison v. United States, RDB-12-3607, 2014 WL 979201, at *2
(D. Md. Mar. 12, 2014) (internal citations omitted); see Erickson v. Pardus, 551 U.S. 89, 94
(2007); Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that claims of self-represented
litigants are held “to less stringent standards than formal pleadings drafted by lawyers”); Bala v.
Commonwealth of Va. Dep’t of Conservation & Recreation, 532 F. App’x 332, 334 (4th Cir.
2013) (per curiam) (same). Nevertheless, I am satisfied that no hearing is necessary to resolve
Petitioner was on parole or probation for a State of Maryland conviction at the time he
committed the underlying offense.
In particular, he had received a sentence of life
imprisonment, with all but 18 years suspended, and five years of probation, for a murder
conviction. ECF 44 (Presentence Report) (“PSR”). Therefore, Petitioner claims that his trial
counsel was ineffective for advising him to plead guilty. According to Petitioner, he wanted to
go to trial, but his lawyer advised him that if he accepted the plea offer the State of Maryland
would not impose the suspended portion of his life sentence, for which he was on probation.
ECF 71 at 4. On January 28, 2016, Petitioner received a life sentence for violation of his
probation. Id. According to Petitioner, his counsel admitted to this error during a phone
conversation with Petitioner on May 4, 2016. Id.
The government claims that the Petition was untimely filed, and is barred by the one year
period of limitations applicable under 28 U.S.C. § 2255(f). That limitations period runs from the
latest of: (1) the date on which the conviction became final; (2) the date on which an
“impediment to making a motion created by government action” is removed, if the movant was
prevented from making his motion by government action that was in violation of the Constitution
or law; (3) the date on which the right asserted was recognized by the Supreme Court, if that
newly-recognized right has been made retroactive to cases on collateral review; or (4) the date on
which the facts supporting the claims could have become known through the exercise of due
As indicated, the Judgment was entered on February 18, 2015. See ECF 65. Under Fed.
R. App. P. 4(b)(1)(A), a notice of appeal must be filed within fourteen days of judgment.
Petitioner did not note an appeal. Therefore, the conviction became final on March 4, 2015,
which was the expiration date for filing an appeal. See United States v. Wilson, 256 F.3d 217,
221 (4th Cir. 2001) (where no appeal filed, conviction becomes final after time for filing appeal
Accordingly, under § 2255(f), Petitioner was required to file his Petition on or before
March 4, 2016. But, the Petition was not filed until June 6, 2016, several months after the
limitations deadline. Accordingly, on this basis, the Petition is subject to dismissal, unless the
doctrine of equitable tolling applies.
Equitable tolling is available in “those ‘rare instances where—due to circumstances
external to the party's own conduct—it would be unconscionable to enforce the limitation against
the party and gross injustice would result.’” Whiteside v. United States, 775 F.3d 180, 184 (4th
Cir. 2014) (en banc) (applying equitable tolling to one-year limitation period in 28 U.S.C. §
2255) (quoting Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc)) (additional citations
omitted); see Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2001); Harris v. Hutchinson, 209 F.3d
325, 330 (4th Cir. 2000). For equitable tolling to apply, an otherwise time-barred petitioner must
demonstrate “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing.’” Holland v. Florida, 560 U.S. 631,
649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). A petitioner need show
only “reasonable diligence”; there is no requirement for “maximum feasible diligence.”
Holland, 560 U.S. at 653 (citation omitted).
There is no indication of any circumstance – must less an extraordinary one – that
prevented Petitioner from timely filing his Petition. Indeed, the facts underlying Petitioner’s
contention were known to him at least as of the day of his guilty plea proceeding, when he was
advised by the Court that his guilty plea could constitute an admission of a violation of his
probation. See ECF 89 at 6.
The PSR (ECF 44) was filed on December 2, 2013. In ¶ 30, it reflects that defendant
received a State sentence of life imprisonment, with all but 18 years suspended, and five years’
probation, for the offense of murder. Prior to sentencing, defense counsel submitted a sentencing
letter to Judge Quarles, setting forth the various grounds for which the defense urged leniency.
ECF 61. Defense counsel said, in part: “The Court is further advised that the defendant is facing
a potential life sentence as a result of the instant conviction and the pending violation of
probation, as noted in Paragraph 33 fo [sic] the PSR.” Id. at 1. And, in seeking a lenient
sentence, the defense reiterated, inter alia, “the realistic possibility of a life sentence as a result
of the pending violation of probation. . . .” Id. at 3.
At sentencing on February 12, 2015, defense counsel specifically represented that he had
“reviewed” the PSR with Petitioner. ECF 90 at 3. Therefore, Petitioner would have known of
the criminal history set forth in ¶ 30. In addition, during sentencing, defense counsel represented
that a life sentence was a “possibility” because of Petitioner’s violation of probation. ECF 90 at
7. And, defense counsel said defendant’s underlying conviction in this case was “clearly a Rule
4 violation,” based on “a subsequent conviction.”
Id. at 8.
“[H]opefully he’ll be able to negotiate something over there.”
Defense counsel added, id.:
Thus, by February 12, 2015, at the latest, Petitioner was on notice of the potential for a
life sentence for violation of probation in State court. There is no basis for equitable tolling. The
Petition was untimely filed.
Even if the filing of the Petition were timely, Petitioner has no basis for relief.
Petitioner argues that his lawyer incorrectly advised him to plead guilty and, but for this
erroneous advice, he would have gone to trial. The longstanding test for determining the validity
of a guilty plea is “whether the plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31
(1970); see Boykin v. Alabama, 395 U.S. 238 (1969); Machibroda v. United States, 368 U.S.
487, 493 (1962).
The Sixth Amendment guarantees a criminal defendant the effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); see also Buck v. Davis, ____ U.S.
____, 137 S. Ct. 759, 775 (2017). Ineffective assistance of counsel is a well recognized basis for
relief under § 2255. See generally Missouri v. Frye, 566 U.S. 133 (2012); Lafler v. Cooper, 566
U.S. 156 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010). Where a defendant is represented by
counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness
of the plea depends on whether counsel's advice “was within the range of competence demanded
of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771 (1970). As the Court
explained in Tollett v. Henderson, 411 U.S. 258 (1973), a defendant who pleads guilty upon the
advice of counsel “may only attack the voluntary and intelligent character of the guilty plea by
showing that the advice he received from counsel was not within the standards set forth in
McMann.” Id. at 267.
To mount a successful challenge under 28 U.S.C. § 2255 based on a Sixth Amendment
claim of ineffective assistance of counsel, a petitioner must satisfy the two-pronged test set forth
in Strickland, 466 U.S. at 687–88. See United States v. Powell, 850 F.3d 145, 149 (4th Cir.
2017). First, the petitioner must show that counsel’s performance was deficient. Second, the
petitioner must show that he was prejudiced by the deficient performance. Id. at 687; see Buck,
137 S. Ct. at 775; Chaidez v. United States, ___ U.S. ____, 133 S. Ct. 1103, 1107–8 (2013); Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000); Hill v. Lockhart, 474 U.S. 52 (1985); Powell, 850
F.3d at 149; United States v. Rangel, 781 F.3d 736, 742 (4th Cir. 2015); Richardson v. Branker,
668 F.3d 128, 139 (4th Cir. 2012); United States v. Higgs, 663 F.3d 726, 735 (4th Cir. 2011);
see, e.g., United States v. Baker, 719 F.3d 313, 318 (4th Cir. 2013).
The first prong is known as the “performance prong,” which relates to professional
competence. The petitioner must demonstrate that his attorney's performance fell “below an
objective standard of reasonableness,” as measured by “prevailing professional norms.”
Strickland, 466 U.S. at 688; see Powell, 850 F.3d at 149. The central question is whether “an
attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not
whether it deviated from best practices or most common custom.” Harrington v. Richter, 562
U.S. 86, 88 (2011) (quoting Strickland, 466 U.S. at 690). The burden is on the petitioner to
establish “‘that counsel made errors so serious that his “counsel” was not functioning as the
“counsel” guaranteed by the Sixth Amendment.’” Harrington v. Richter, 562 U.S. at 88 (quoting
Strickland, 466 U.S. at 687).
As the Supreme Court recently reiterated, the “first prong sets a high bar.” Buck, 137 S.
Ct. at 775; see also Powell, 850 F.3d at 149. “The lawyer has discharged his constitutional
responsibility so long as his decisions fall within the ‘wide range of professionally competent
assistance.’” Buck, 137 S.Ct. at 775 (citation omitted). Consequently, the performance prong is
“‘difficult’” to establish. Lawrence v. Branker, 517 F.3d 700, 709 (4th Cir. 2008) (quoting
James v. Harrison, 389 F.3d 450, 457 (4th Cir. 2004)).
To satisfy the high bar, the petitioner must show that “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Strickland, 466 U.S. at 687. “Keenly aware of the difficulties inherent in
evaluating counsel’s performance, the Supreme Court has admonished that courts ‘must indulge
a strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance.’” Lawrence, 517 F.3d at 708 (quoting Strickland, 446 U.S. at 689); see
Harrington, 562 U.S. at 104; Lee v. Clarke, 781 F.3d 114, 122 (4th Cir. 2015). Indeed, “the
Strickland standard must be applied with scrupulous care,” Harrington, 562 U.S. at 105, and “the
standard of judging counsel's representation is a most deferential one.” Id.
Second, the petitioner must show that his attorney's deficient performance “prejudiced
[his] defense.” Strickland, 466 U.S. at 687. To satisfy the “prejudice prong,” a petitioner must
show that “there is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Id. at 694; see also Buck, 137 S. Ct. at 776;
Lafler, 566 U.S. at 163. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome” of the proceedings. Strickland, 466 U.S. at 687.
The Padilla Court said, 559 U.S. at 371: “Surmounting Strickland’s high bar is never an
easy task.” This is because a petitioner is not entitled to post-conviction relief based on prejudice
where the record establishes that it is “not reasonably likely that [the alleged error] would have
made any difference in light of all the other evidence of guilt.” Berghuis v. Thompkins, 560 U.S.
370, 390 (2010).
A court “need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. at
697. Nor must a court address both components if one is dispositive. Jones v. Clarke, 783 F.3d
987, 991 (4th Cir. 2015). This is because failure to satisfy either prong is fatal to a petitioner's
claim. As a result, “there is no reason for a court...to address both components of the inquiry if
the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.
Ultimately, the decision to plead guilty rests entirely with the defendant. The Supreme
Court has concluded that “the exercise or waiver of [certain] basic trial rights are of such
moment that they cannot be made for the defendant by [his counsel]. A defendant… has ‘the
ultimate authority’ to determine ‘whether to plead guilty, waive a jury, testify in his or her own
behalf, or take an appeal.’” Florida v. Nixon, 543 U.S. 175, 187 (2004)(quoting Jones v. Barnes,
463 U.S. 745, 751 (1983)(emphasis added)).
Petitioner appears to argue that he was not aware of the consequences of his guilty plea in
terms of his exposure to a life sentence in the State system for the violation of his probation.
However, during the Rule 11 proceeding, Judge Quarles explained to Johnson that his conviction
in this case might constitute a violation of his probation in another case. ECF 89 at 6.
The plea colloquy at Petitioner’s Rule 11 hearing established that the guilty plea was an
informed one and also a voluntary one. “Findings by a sentencing court in accepting a plea
‘constitute a formidable barrier’ to attacking the plea.” United States v. Lambey, 974 F.2d 1389,
1395 (4th Cir. 1992) (en banc) (citation omitted). Where, as here, “information given by the
court at the Rule 11 hearing corrects or clarifies the earlier erroneous information given by the
defendant's attorney and the defendant admits to understanding the court's advice, the criminal
justice system must be able to rely on the subsequent dialogue between the court and defendant.”
Id. at 1395.
Moreover, “a defendant's solemn declarations in open court affirming [a plea] agreement
... ‘carry a strong presumption of verity.’” United States v. White, 366 F.3d 291, 295 (4th Cir.
2004) (quoting Blackledge v. Allison, 431 U.S. 63, 76 (1977)). “Indeed, because they do carry
such a presumption, they present ‘a formidable barrier in any subsequent collateral
proceedings.’” White, 366 F.3d at 295-96 (quoting Blackledge, 431 U.S. at 74). Courts must be
able to rely on the defendant's statements made under oath during a properly conducted Rule 11
plea colloquy. United States v. Bowman, 348 F.3d 408, 417 (4th Cir. 2003). Notably, “a more
lenient approach . . . ‘would eliminate the chief virtues of the plea system – speed, economy, and
finality.’” White, 366 F.3d at 296 (citation omitted).
There is nothing in the record indicating that Petitioner was provided with incomplete or
erroneous advice. To the contrary, Petitioner’s lawyer used Petitioner’s exposure to a life
sentence as a ground for seeking leniency from Judge Quarles in regard to sentencing in the
federal case. Further, Petitioner has failed to demonstrate that, but for his lawyer’s advice, he
would have insisted on going to trial. Petitioner was arrested in a vehicle with a substantial
amount of cocaine. Through effective advocacy, he received a 48-month federal sentence.
Petitioner never complained about his sentence, or the advice he received, until after the
suspended portion of his State sentence was imposed.
As the government puts it, ECF 86 at 8: “This appears to be nothing more than a case of
buyer’s remorse.” At the relevant time, Johnson was aware of the consequence of his plea and
its possible effect on his State probation.
Certificate of Appealability
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 (“COA”) when it enters a final
order adverse to the applicant. A COA 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). In other words,
unless a COA is issued, a petitioner may not appeal the court's decision in a § 2255 proceeding. 2
28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b).
A COA 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); see Buck v. Davis, 137 S. Ct. at 773. 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 Tennard v. Dretke, 542 U.S. 274, 282 (2004); Slack v. McDaniel,
529 U.S. 473, 484 (2000); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
As indicated, a COA may issue only if the petitioner “has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because Petitioner has not made a
substantial showing of the denial of his constitutional rights, I decline to issue a COA.
An Order follows, consistent with this Memorandum.
Date: November 8, 2017
Ellen Lipton Hollander
United States District Judge
The denial of a COA by the district court does not preclude Petitioner from seeking a
COA from the appellate court.
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