Agbugba v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 1/30/2017. (dass, Deputy Clerk) (c/m 1/30/17-das)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EDEOGOCHINEME
AGBUGBA,

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Petitioner,

Criminal No. RDB-14-0493
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v.

Civil Action No. RDB-16-2756
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UNITED STATES OF AMERICA,
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Respondent.
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MEMORANDUM OPINION
The pro se Petitioner Edeogochineme Agbugba (“Petitioner” or “Agbugba”) pled
guilty before this Court to Conspiracy to distribute and possess with intent to distribute 100
grams or more of a mixture or substance containing heroin, a Schedule 1 controlled
substance, in violation of 21 U.S.C. § 846, pursuant to a Plea Agreement with the
Government. Am. J., p. 1, ECF No. 64. Petitioner’s plea was tendered pursuant to Rule
11(c)(1)(C) of the Federal Rules of Criminal Procedure and provided for an agreed term of
incarceration of 36 months. Subsequently, this Court sentenced Petitioner to 36 months
imprisonment, followed by two 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. 84).1 Having reviewed the parties’ submissions, this Court
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Also pending before this Court is Petitioner’s Motion to Reduce Sentence (ECF No. 77). The pending
motion is identical to Petitioner’s subsequently filed Motion to Reduce Sentence (ECF No. 79), in which
Petitioner requested a reduction of sentence in light of Amendment 782 to the United States Sentencing
Guidelines, which lowered the guidelines drug quantity tables. Via Order dated December 22, 2016 (ECF No.
90), this Court has already denied that request. Accordingly, Petitioner’s pending duplicate Motion to Reduce
Sentence (ECF No. 77) is MOOT.

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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. 84) is DENIED.
BACKGROUND
Petitioner Edeogochineme Agbugba (“Petitioner” or “Agbugba”) was charged via a
two-count indictment with Conspiracy to distribute and possess with intent to distribute
heroin, in violation of 21 U.S.C. § 846, (Count I) and Possession with intent to distribute
heroin, in violation of 21 U.S.C. § 841(a)(1) (Count II). See Indictment, pp. 1-2, ECF No. 8.
On August 10, 2015, Agbugba pled guilty before this court to Conspiracy to distribute and
possess with intent to distribute heroin (Count I), pursuant to a Rule 11(c)(1)(C) Plea
Agreement (“C Plea”) with the Government, providing for a sentence of 36 months
imprisonment.2 Am. J., p. 1, ECF No. 64. At a Rearraignment hearing before this Court,
Agbugba verified on the record that he had read and discussed the Plea Agreement with his
court-appointed counsel, understood the charges against him, and was satisfied with his
counsel’s services. Rearraignment Tr., pp. 6-11, ECF No. 71. This Court proceeded to
accept Agbugba’s guilty plea, finding that he had knowingly and voluntarily entered into that
guilty plea with the assistance of counsel. Am. J., p. 1, ECF No. 64. Subsequently, this Court
sentenced Agbugba to 36 months imprisonment, followed by two years of supervised
release. Id. at 2-3. Agbugba was directed to surrender himself to an institution designated by
the Bureau of Prisons by January 11, 2016 to begin his sentence. 3 Id. at 2.
Pursuant to the Plea Agreement, Count II was dismissed.
Also pending before this Court is Petitioner’s Motion for Credit for Time Served in Home Confinement
(ECF No. 89), in which he requests credit toward his 36-month sentence for the time he spent in home
confinement between June 5, 2015, and January 11, 2016, prior to his self-surrender. Via correspondence
dated January 27, 2017 (ECF No. 93), the Government has indicated that Petitioner was not in official
detention during that time. Under 18 U.S.C. § 3585(b), “[a] defendant shall be given credit . . . for any time he
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Agbugba appealed his conviction and 36-month sentence to the United States Court
of Appeals for the Fourth Circuit (ECF No. 60). The Fourth Circuit dismissed Agbugba’s
appeal of his sentence because, pursuant to his Plea Agreement with the Government,
Agbugba had “knowingly and intelligently waived his right to appeal his sentence.” United
States v. Agbugba, 653 F. App’x 174, 175 (4th Cir. 2016). As to Petitioner’s conviction, the
Fourth Circuit addressed Agbugba’s arguments on the merits, ultimately finding that
“Agbugba’s guilty plea was knowingly and voluntarily made.” Id. Accordingly, the Fourth
Circuit affirmed his conviction. Id. In his pending Motion to Vacate, Set Aside, or Correct
Sentence, pursuant to 28 U.S.C. § 2255 (ECF No. 76), Agbugba argues that his courtappointed counsel rendered ineffective assistance, in violation of his rights under the Sixth
Amendment to the United States Constitution. See Mot., ECF No. 84; Reply, ECF No. 88.
Additionally, Agbugba alleges “inconsist[e]nt statement[s]” by the officers who arrested him.
Mot., p. 5, ECF No. 84.
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

has spent in official detention prior to the date the sentence commences[.]” Pursuant to the United States
Supreme Court’s decision in Reno v. Koray, 515 U.S. 50, 57 (1995), “a defendant suffers ‘detention’ only when
committed to the custody of the Attorney General.” Prior to January 11, 2016, Petitioner was not committed
to the custody of the Attorney General. See Correspondence, ECF No. 93. Thus, Petitioner’s time spent in
home confinement was not time spent “in official detention” as required under 18 § 3585(b). Further, even if
Petitioner was entitled to time served, he has not exhausted the proper procedure for raising this claim by
making his request through the Bureau of Prisons. For these reasons, Petitioner’s Motion for Credit for Time
Served in Home Confinement (ECF No. 89) is DENIED.

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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)).
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
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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).
I.

Petitioner Has Failed to Demonstrate Ineffective Assistance of Counsel
Petitioner raises four arguments in support of his claim of ineffective assistance of

counsel. Mot., p. 5, ECF No. 84. First, Petitioner argues that his “trial counsel failed to
request a downward departure [at sentencing] base[d] on [Petitioner’s] mitigating role” in the
charged crime. Id. Second, he argues that his “trial counsel failed to seek [a sentence]
reduction based on [his] immigration status.” Id. Third, Petitioner argues that his trial
counsel failed to “challeng[e] [his] arrest.” Id. Fourth, he argues that his trial counsel failed to
request “a drug analysis hearing.” Id. However, 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 Conspiracy to distribute and possess with intent to distribute
heroin. Rearraignment Tr., pp. 6-12, ECF No. 71. Additionally, the United States Court of
Appeals for the Fourth Circuit has affirmed this Court’s finding that Petitioner’s guilty plea
was both knowing and voluntary. Agbugba, 653 F. App’x at 175 (4th Cir. 2016). Furthermore,
Petitioner’s individual arguments fail for the reasons discussed herein.
A.

Mitigating Role Argument

Petitioner argues that his “trial counsel failed to request a downward departure [at
sentencing] base[d] on [his] mitigating role” in the charged crime. Mot., p. 5, ECF No. 84.
However, Petitioner was not, in fact, entitled to a role reduction under Section 3B1.2 of the
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United States Sentencing Guidelines (“U.S.S.G.”), which requires that a defendant be a
“minimal participant” or “minor participant” in the criminal activity. Pursuant to his Plea
Agreement with the Government, Petitioner stipulated that in June of 2014, “a parcel sent
from India was found by a customs officer to contain more than 150 grams of heroin” and
“destined for 2331 East Monument Street in Baltimore, Maryland” where “the defendant
[Agbugba] personally accepted the package.” Plea Agreement, p. 4, ECF No. 45. Petitioner
also stipulated that a search warrant executed at the same address recovered “defendant’s
Facebook account, contain[ing] messages reflecting prior shipments of parcels from India,”
which Petitioner “admit[ted] that he knew . . . contained a controlled dangerous substance.”
Id. Thus, Petitioner was not a minor participant in the criminal activity, as is required under
U.S.S.G. § 3B1.2 to decrease the offense level.
Petitioner’s sentence was reasonable and appropriate. Based on Petitioner’s total
offense level of 19 and his criminal history category of I, the advisory sentencing guideline
range for his sentence was 30 to 37 months imprisonment. Am. Presentence Report, pp. 910, ECF No. 57. This Court adopted the factual findings and advisory guideline application
in the Presentence Report without change, and imposed a sentence within the advisory
guideline range. Statement of Reasons, pp. 1-2, ECF No. 59 [SEALED]. For these reasons,
Petitioner’s first argument fails.
B.

Immigration Status and Half-Way House Argument

Petitioner argues that his “trial counsel failed to seek [a sentence] reduction based on
[his] immigration status” and failed to request that Petitioner be placed in a “half-way house
base[d] on deportability.” Mot., p. 5, ECF No. 84. However, Petitioner cannot demonstrate
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ineffective assistance of counsel because his counsel met the objective standard of
reasonableness required by Strickland. See 466 U.S. 668 at 688. Petitioner has failed to identify
any authority that would have entitled him to a lower sentence on the basis of his
immigration status. All parties, including this Court, were aware of Petitioner’s immigration
status at his Rearraignment hearing and at his Sentencing. Pursuant to Petitioner’s C Plea, he
“surrender[ed] certain rights as outlined below:
By pleading guilty, the Defendant will also be giving up certain valuable civil
rights and may be subject to deportation or other loss of immigration status.
The Defendant recognizes that if the Defendant is not a citizen of the United
States, pleading guilty may have consequences with respect to the Defendant’s
immigration status. Under federal law, conviction for a broad range of crimes
can lead to adverse immigration consequences, including automatic removal
from the United States . . . .[T]he Defendant understands that no one,
including defense counsel or the Court, can predict with certainty the effect of
conviction on immigration status. The Defendant nevertheless affirms that the
Defendant wants to plead guilty regardless of any potential immigration
consequences.
Plea Agreement, p. 3, ECF No. 45.
The issue of Petitioner’s immigration was understood by all parties and
discussed extensively at his Sentencing. The record reads as follows:
THE COURT:

I’ll make a recommendation. The difficulty
he might have, I’ll tell you, because of his
immigration status and the potentiality of
deportation . . . that causes them to put
him in medium security. Which doesn’t
seem to fit here, but it varies according to
what state you’re in, in terms of the
position of the various immigration
officials. So I would be inclined to
recommend Cumberland in Maryland, the
minimum male camp. But I don’t know if
he’ll get that or not, because of his
immigration status or lack thereof . . . Is
that satisfactory to you?
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MR. BUSSARD:

It’s satisfactory at this point.

THE COURT:

If you were a citizen of the United States,
deportation would really not be a factor
here. But you didn’t gain citizenship. And
you came here on a visitor’s visa and then
just stayed; correct?

DEFENDANT AGBUGBA:
THE COURT:

Yes, sir. Yes, sir, Your honor.
And you didn’t comply with immigration
laws and suddenly you get involved with
criminal activity and that results in your
deportation. But I will – I’m going to
sentence you as agreed. The sentence
you’ve agreed upon with the government,
I will abide by that.

Sentencing Tr., pp. 20, 23, ECF No. 73.
At Sentencing, this Court imposed the sentence agreed upon in Petitioner’s C Plea
Agreement, and Petitioner’s counsel did not act unreasonably in declining to argue for a
further sentence reduction in light of Petitioner’s immigration status. Additionally, given the
seriousness of the charges, Petitioner was not entitled to serve his sentence in a half-way
house.

He has cited no authority to the contrary.

Consequently, Petitioner’s second

argument for ineffective assistance of counsel fails.
C.

Unlawful Arrest Argument

Petitioner argues that his counsel failed to “challeng[e] [his] arrest.” Mot., p. 5, ECF
No. 84. Specifically, Petitioner argues that he “was arrested without an arrest warrant.” Id.
However, this issue was, in fact, raised in pretrial motions briefing, wherein Petitioner argued
that certain statements and evidence should be suppressed because his arrest was unlawful.
See Mot. to Suppress Tangible Evidence, ECF No. 16; Mot. to Suppress Statements, ECF
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No. 17; Mot. to Suppress Evidence Seized Pursuant to Search Warrants, ECF No. 20.
This Court disposed of the issue in an order dated August 6, 2015 (ECF No. 43),
denying each of Petitioner’s Motions to Suppress. Subsequently, pursuant to his Plea
Agreement with the Government, Petitioner specifically gave up the rights “to confront and
cross-examine the government’s witnesses,” “to present any defense witnesses or evidence
whatsoever,” and “to testify in his own defense if he so chose.” Plea Agreement, p. 3, ECF
No. 45. Therefore, Petitioner’s third argument for ineffective assistance of counsel fails.
D.

Drug Analysis Hearing Argument

Petitioner argues that his counsel failed to “request [] a drug analysis hearing.” Mot.,
p. 5, ECF No. 84. With respect to this final argument, Petitioner cannot demonstrate
ineffective assistance of counsel because he cannot meet the prejudice prong of the Strickland
test that, but for his counsel’s alleged errors, he would not have pled guilty. See Strickland, 466
U.S. 668 at 694; see also Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) (modifying the
prejudice prong of the Strickland test in the plea bargaining context). Given the compelling
evidence produced by the Government as to the presence of heroin in the package received
by Petitioner, Petitioner cannot show that a drug analysis hearing would have changed his
decision to plead guilty. The government produced a lab report conducted by an analyst of
the Baltimore Police Department’s Laboratory Section which indicated a positive test for
heroin. Government’s Ex. G, H. There is no indication that any evidence submitted at a
drug analysis hearing would have undermined this finding.
Additionally, as discussed supra, Petitioner has entered a valid guilty plea to the
offense of Conspiracy to distribute and possess with intent to distribute heroin and has
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stipulated to the facts the Government would be able to prove at trial with respect to that
offense. Petitioner entered his guilty plea voluntarily, and the Fourth Circuit affirmed
Petitioner’s conviction. Agbugba, 653 F. App’x at 175 (4th Cir. 2016). For these reasons,
Petitioner’s final claim of ineffective assistance of counsel fails.
II.

Petitioner Waived Any Claim Based on Inconsistent Statements by Arresting
Officers
Petitioner argues that his arresting officers gave “inconsist[e]nt statement[s]” because

the “name on the package [of heroin] changed” in the officers’ reports. Mot., p. 5, ECF No.
84. However, pursuant to his Plea Agreement with the Government, and as explained above,
Petitioner has waived the right to raise any such claims.
To the extent that Petitioner has also sought to raise this argument as an ineffective
assistance of counsel claim, his argument still fails. This Court addressed the officers’ alleged
inconsistent statements at a motions hearing during which Petitioner’s counsel did in fact
raise this issue. The record reads as follows:
THE COURT:

. . . I’ve heard Detective Beard’s
testimony and judged his credibility, and I
find as a matter of fact it is absolutely
credible and believable. It’s very obvious
what happened. He followed a form. He
was new to the task force. And he made
the mistake in keeping the same name
from and name to on the form. As to the
other information, the address from and
the address to are consistent – are accurate
to the facts of this case . . . it really doesn’t
make any difference what name it’s from
or to based upon the information that’s
contained in the affidavit in terms of the
listing for probable cause.

Motions Hearing, p. 100, ECF No. 70.
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Petitioner verified on the record at his Rearraignment that, in light of the motions hearing,
there was nothing he had asked his counsel to do that he had not done and he was satisfied
with his counsel’s services. Rearraignment Tr., pp. 9-10, ECF No. 71. Thus, Petitioner’s final
argument fails.
CONCLUSION
For the foregoing reasons, Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence, pursuant to 28 U.S.C. § 2255 (ECF No. 84) is 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.
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 30, 2017
/s/
Richard D. Bennett
United States District Judge
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