Baker v. USA-2255
MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 9/13/2017. (c/m 9/14/17 bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Criminal No. RDB-15-0290
Civil Action No. RDB-17-684
UNITED STATES OF AMERICA,
Pro se Petitioner Tercel Baker (“Petitioner” or “Baker”) pled guilty before this Court
to Possession with the Intent to Distribute 28 Grams or More of Cocaine Base, in violation
of 21 U.S.C. § 841(a)(1) on December 7, 2015. (ECF No. 42.) Subsequently, on March 15,
2016, this Court sentenced him to 144 months imprisonment, followed by four years of
supervised release. (ECF No. 59 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
(“Petitioner’s Motion”). (ECF No. 61.) 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. 61) is DENIED.
On May 20, 2015, a federal grand jury returned a three-count indictment charging
Baker with (1) possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. §
922(g)(1); (2) possession with the intent to distribute a controlled substance, in violation of
21 U.S.C. § 841(a); and (3) possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A). (Indictment, ECF No. 1 at 1.) The stipulated facts
included in the subsequent plea agreement describe the traffic stop from which Baker’s
On January 8, 2015, members of the Maryland State Police and Homeland
Security Investigations conducted covert surveillance inside the Rainbow View
Apartment Complex in Glen Burnie. They observed their target, Tercel
Baker, exit his apartment and enter the driver’s side of a Gold Lexus SUV.
The officers followed Baker as he drove out of the complex.
They observed Baker commit several traffic violations…and initiated a traffic
stop. After speaking with Mr. Baker and observing his demeanor, a K9 was
ordered to scan the car, resulting in a positive alert for the presence of
contraband. Officers searched the car and recovered an unmarked bottle with
26 oxycodone pills…Baker was arrested and searched…Officers found 14.4
grams of crack in Baker’s underwear.
Officers applied for and received a search warrant for Baker’s Rainbow View
apartment. In the bedroom closet officers recovered 42.84 grams of
marijuana and an additional 45 grams of crack. All of the narcotics were
packaged for individual sale. They also found a High Point .40 caliber firearm
with an obliterated serial number, and 50 rounds of ammunition in the same
closet and over $12,000 in cash.
(Plea Agreement, ECF No. 42 at 4-5.)
Paul D. Hazlehurst, Esq., of the Office of the Federal Public Defender (“FPD”), was
appointed to represent Baker at his Initial Appearance, (ECF No. 7), but the FPD withdrew
from the case when Baker retained private counsel. (ECF No. 19 and 21.) After Baker’s
new attorney, Frank V. Boozer, Jr., Esq., entered his appearance in the case, Baker filed a
Motion to Suppress Physical Evidence on July 2, 2015.
(ECF No. 20.)
conducted a Motions Hearing on August 31, 2015. (ECF No. 20, 23, and 27.) At the
hearing, the parties discussed a possible plea agreement, which Baker rejected. (ECF No. 33
at 7-9.) For the reasons stated on the record, the Court denied Petitioner’s Motion to
Suppress. (ECF No. 33.) Following this Court’s ruling, Baker filed a pro se Notice of
Interlocutory Appeal, which was dismissed by the United States Court of Appeals for the
Fourth Circuit. Baker’s counsel, Mr. Boozer, subsequently withdrew his appearance from
the case. (ECF No. 30 and 31.) This Court then re-appointed Paul D. Hazlehurst, Esq. as
counsel on September 15, 2015. The trial date was rescheduled from September 21, 2015 to
December 14, 2015. (ECF No. 36.)
On December 7, 2015, Baker entered a plea of guilty to Possession with the Intent to
Distribute 28 Grams or More of Cocaine Base, in violation of 21 U.S.C. § 841(a)(1),
pursuant to Count Two of the Indictment (ECF No. 42.) This guilty plea was entered
pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure with an agreed
range of sentence of 120 to 180 months. The remaining counts in the Indictment were
dismissed on the motion of the United States. (ECF No. 59.) Baker’s plea agreement
contains several stipulations regarding sentencing. The parties agreed that the base offense
level is 24, pursuant to U.S.S.G. § 2D1.1(c)(8), and that Baker qualifies as a Career Offender,
pursuant to U.S.S.G. § 4B1.1. (ECF No. 42 at 5.) As a result of the Career Offender
qualification, Baker’s offense level is 34 and his criminal history category is VI.
However, based on Baker’s acceptance of responsibility in the plea agreement, his offense
level was adjusted down three levels to 31.
The Pre-Sentence Report (“PSR”)
calculated an imprisonment range of 188 to 235 months, based on a total offense level of 31
and a criminal history category of VI. (ECF No. 46 at 16, ¶ 65.) However, the parties
agreed to a sentencing range of 120 months to 180 months within the plea agreement, lower
than the range recommended in the PSR. (ECF No. 42 at 6 - 7.)
The plea agreement also includes Baker’s waiver of his right to appeal his conviction,
pursuant to 28 U.S.C. § 1291. (ECF No. 42 at 7.) Baker also waived his right to appeal his
sentence, pursuant to 18 U.S.C. § 3742 or otherwise, except in the event that the imposed
sentence was greater than the range agreed upon in his plea, 120 months to 180 months.
On March 15, 2016, this Court sentenced Baker to 144 months imprisonment,
pursuant to the agreed upon sentencing range in the plea agreement. (ECF No. 59.) No
direct appeal was filed. (ECF No. 61-1 at 7.)
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)).
Ineffective Assistance of Counsel
In order to establish an ineffective assistance of counsel claim, 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
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).
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
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
11 colloquy are always ‘palpably incredible’ and ‘patently frivolous or false.’” United States v.
Lemaster, 403 F.3d 216, 221 (4th Cir. 2005). Further, the Fourth Circuit instructed district
judges to “dismiss any § 2255 motion [without holding an evidentiary hearing], that
necessarily relies on allegations that contradict the [Petitioner’s] sworn statements.” Id. at
Baker alleges ineffective assistance of counsel on a number of grounds and against
both attorneys in this case. Baker claims that Mr. Boozer failed to: (1) communicate with
Baker and inform him of the relevant circumstances and likely consequences of pleading
guilty as opposed to proceeding to trial; (2) attempt to negotiate a favorable plea agreement;
and (3) conduct an adequate and independent trial investigation. (ECF No. 61-1 at 2.)
Baker makes the same claims regarding Mr. Hazlehurst’s representation, and further asserts
that Hazlehurst failed to: (1) review, discuss and explain the PSR to Baker prior to the
sentencing hearing; (2) argue for mitigation of punishment; (3) file substantive objections to
the PSR; (4) object to Baker’s sentence being substantively unreasonable; and (5) file a notice
of appeal as Baker requested, in violation of petitioner’s Sixth Amendment rights. (Id.)
Petitioner’s asserted grounds for ineffective assistance of counsel are either invalid in light of
his statements under oath or do not meet the legal standard necessary to accord him relief
under § 2255.
Mr. Boozer’s Performance Was Not Deficient
Baker asserts that Mr. Boozer did not: (1) conduct an adequate and independent trial
investigation, (2) adequately communicate with him, or (3) negotiate a favorable plea
agreement. It is well established that Mr. Boozer’s actions fall within the wide range of
reasonable professional assistance of counsel. Strickland, 466 U.S at 689. Regarding pre-trial
investigations, “counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Id. at 691. It is then for the court
to decide, whether in a particular case, “identified acts or omissions were outside the wide
range of professionally competent assistance.” Id. In this case, the decision not to conduct
additional investigations made by both Mr. Boozer and, subsequently, Mr. Hazlehurst,
reflected a reasonable exercise of their professional judgment. The Petitioner claims counsel
did not research the use of a stingray during his arrest, determine whether there was traffic
camera footage of the stop available, contest the qualification of the drug detection dog, or
interview Petitioner’s family members regarding the case. (ECF No. 61 at 20-21.) However,
the record reflects that: the Government did not employ a stingray in this case, there was no
traffic camera where the stop was executed, and the drug detection dog’s qualifications were
provided in discovery. (See ECF No. 68 at 12, n. 7.) Thus, it cannot be said that counsel
failed to exercise reasonable professional judgment while defending Baker, and the outcome
of Baker’s case was not prejudiced as a result.
Baker also asserts that Boozer did not sufficiently communicate with Baker and that
Boozer failed to attempt to negotiate a favorable plea agreement. However, these post hoc
allegations are not supported by the record. Baker himself indicated that Boozer came to
meet him multiple times and discussed the strategy to invalidate the traffic stop in order to
dismiss drug evidence obtained at Mr. Baker’s home. (ECF No. 61-1 at 14). Additionally,
Boozer discussed an offered plea agreement with Baker, and Baker declined that offer on the
record. (ECF No. 33 at 7-9.) Baker’s rejection of the plea agreement negotiated by Mr.
Boozer had no bearing on the subsequent plea agreement Baker voluntarily accepted that
was negotiated by Mr. Hazlehurst. The outcome of Baker’s case was not prejudiced by the
actions of Boozer, thus, Baker’s assertions regarding Mr. Boozer’s representation are
In sum, Baker is not entitled to relief under § 2255 based on his assertion of
ineffective assistance of counsel by Mr. Boozer.
B. Mr. Hazlehurst’s Performance was not Deficient
1. Baker’s Arguments Regarding Hazlehurst’s Performance are
Inconsistent with Baker’s Statements under Oath
Baker assertions regarding Mr. Hazlehurst’s representation are contradicted by
Baker’s statements on the record. Under Lemaster, a § 2255 motion that depends on a
contradiction of Petitioner’s own sworn statements must be dismissed absent extraordinary
403 F.3d at 221.
Baker stated on the record at his Rearraignment
proceedings that he was satisfied with Mr. Hazlehurst’s representation and that he was
voluntarily pleading guilty to Possession with Intent to Distribute 28 Grams or More of a
Substance Containing a Detectable Amount of Cocaine Base. (Rearraignment Tr., ECF No.
64.) The plea colloquy includes the following discussion:
Sir, do you understand that you’re
now under oath?
Yes, sir. [. . .]
And have you fully discussed these
charges and the three-count
indictment with your attorney, Mr.
Hazlehurst, the Assistant Federal
Have you discussed the whole
situation with Mr. Hazlehurst,
including the evidence in the case?
Yes, sir. [. . .]
And have you discussed the
possibility of a trial with Mr.
Yes, Your Honor.
And are you fully satisfied with Mr.
Hazlehurst and his representation,
and the advice which he’s given
And is there anything you've asked
Mr. Hazlehurst to do which he's
No. He did everything personally.
[. . .]
And did you have an opportunity
to read and discuss this plea
agreement letter with your attorney
before you signed it?
Yes, sir. [. . .]
Are you pleading guilty of your
own freely because you are, in fact,
Yes, Your Honor. [. . .]
And, Mr. Baker, are you satisfied
that you understand all the possible
consequences of your plea of
Yes, Your Honor.
(Id. at 9 - 13, 18.) The record thus indicates that Baker understood the implications of
pleading guilty as opposed to proceeding to trial and pleaded guilty of his own free will.
(ECF No. 64 at 9 - 13, 18.) Importantly, Baker stated he was satisfied with counsel’s
representation, directly contradicting the assertions in his own § 2255 claim. (ECF No. 61-1
at 2.) Further, Petitioner’s arguments that Mr. Hazlehurst did not effectively communicate
with him about the PSR or raise mitigating factors on his behalf at the Sentencing Hearing
are also directly contradicted by the record:
…Mr. Baker, first of all, I want to verify
that you’ve had an opportunity to review
the presentence report in this case . . .
Have you reviewed the report with Mr.
And approximately how many times have
you discussed it with him?
Three times now.
All right. Are you satisfied you’ve had a
sufficient amount of time to go over it
(ECF No. 65 at 5.) Baker’s own statements under oath refute his claim that counsel did not
review, discuss or explain the PSR to him. (ECF No. 61-1 at 2.) Additionally, during the
Sentencing Hearing Mr. Hazlehurst raised mitigating factors regarding Baker’s difficult
upbringing, lack of high school diploma or GED, lack of formal job training or skills, and
Petitioner’s drug and gambling addiction. (ECF No. 65 at 25–31.) Baker thanked Mr.
Hazlehurst on the record for the mitigating factors that he raised, and Baker affirmed Mr.
Hazlehurst’s statements with his own. (Id. at 36–39.)
Baker’s statements under oath and his statements in his § 2255 claim cannot both be
Therefore, under the guidance of Lemaster, Petitioner’s § 2255 claim cannot be
supported by contradicting his own sworn statements, in the absence of extraordinary
circumstances. 403 F.3d at 221. As no extraordinary circumstances exist here, Baker’s
claims of inassistance of counsel are not sufficient to support his § 2255 claim.
2. Ineffective Assistance Claims Based on Alleged Counsel Inaction do
not Meet Strickland Standard
Baker claims that Mr. Hazlehurst failed to file substantive objections to the
Presentence Report (“PSR”), to negotiate a favorable plea agreement, or to object to Baker’s
sentence. (ECF No. 61-1 at 2.) However, these claims are not supported by the details of
the plea agreement Baker voluntarily accepted, and Baker’s assertions do not indicate that
Hazlehurst’s actions were unreasonable. (ECF No. 42 at 6-7.) Indeed, raising objections to
the PSR would be unreasonable given the more favorable sentence in Baker’s plea
agreement. Pursuant to Rule 11(c)(1)(C), the plea agreement stipulated a sentencing range of
120 months to 180 months, (id.), whereas, the PSR included a much higher sentencing range
of 188 months to 235 months (ECF No. 46 at 16, ¶ 65). This Court specifically stated at the
Sentencing Hearing on March 15, 2016 that, “[Baker is] going to be sentenced by agreement
to a sentence below the Advisory Guideline range because the guideline range was definitely
higher than the 10 to 15 years as reflected in the agreement in this case.” (ECF No. 65 at 7:
8-12.) Petitioner’s acceptance of the plea agreement and the lower sentencing range that was
applied is evidence of counsel’s negotiation of a favorable agreement and that further
substantive objections to either the PSR or the sentence of 144 months were either
unnecessary or imprudent. Given the favorable outcome for Baker, Hazlehurt’s actions fall
within the ambit of reasonable professional assistance of counsel under Strickland.
Baker also argues that Mr. Hazlehurst failed to conduct an adequate and independent
trial investigation. (ECF No. 61-1 at 2.) As with Mr. Boozer, Baker’s arguments against
Hazlehurst on this ground fail as the decision not to investigate reflected a reasonable
exercise of Hazlehurst’s professional judgment based on facts of the case (ECF No. 68 at 12,
Moreover, as noted above, Baker affirmed his support of Mr. Hazlehurst’s
performance in open court. (Rearraignment Tr., ECF No. 64 at 9 - 13, 18.) Thus, even if
Baker were able to show that Hazlehurst failed to conduct an adequate investigation – which
he has not – he would still not be entitled to relief based on his inconsistent assertions. See
Lemaster. 403 F.3d at 221-22.
Finally, there is no basis upon which the Court can grant relief for Petitioner’s
remaining ineffective assistance claim: that counsel failed to file a notice of appeal as
requested by Baker. Baker waived his right to appeal his conviction on the merits in his plea
agreement. (ECF No. 42 at 7) Baker also waived his right to appeal his sentence, unless the
imposed sentence was outside of the range agreed upon within the plea. (Id.) Baker’s
sentence of 144 months was within the 120 to 180 month range of the plea agreement, and
therefore, there was no basis for an appeal. (ECF No. 65 at 48) Consequently, there was no
appeal noted in this case. (ECF No 61-1 at 7). Even if Mr. Hazlehurst had filed an appeal, it
would have been futile. Therefore, Hazlehurst’s performance on this matter clearly meets
the standard of reasonable professional assistance. All of Baker’s ineffective assistance of
counsel claims are insufficient under Strickland and Lemaster, therefore, Baker is not entitled
to relief under § 2255.
Baker’s Classification as a Career Offender
Baker also asserts that his prior felony drug convictions should not qualify him as a
Career Offender under United States Sentencing Guideline § 4B1.1. As relief, he seeks
resentencing without the Career Offender enhancement, or in the alternative an evidentiary
hearing. (ECF No. 61-1 at 37.) Baker’s two prior felony drug convictions properly place
him in the Career Offender category under United States Sentencing Guideline § 4B1.1.
(ECF No. 46 at 5-9.) This classification was discussed with and agreed to by Baker during
the Rearraignment where he accepted the plea agreement, and then again at the Sentencing
Hearing. (ECF No. 64 at 22-24; ECF No. 65 at 11-13.) The plea agreement functionally
was negotiated without the Career Offender enhancement, as the agreed upon sentencing
range was well below what was recommended in the PSR for a Career Offender in a
category VI – Baker’s designation prior to the plea agreement. (ECF No. 65 at 7: 8-12.)
Specifically, the plea agreement states that, “the parties also agree that the agreed upon
sentencing range would be appropriate even if the defendant was not a career offender.”
(ECF No. 42 at 6). Therefore, granting the Petitioner’s requested relief for resentencing
without the Career Offender enhancement would have no effect on his sentence. (ECF No.
61-1 at 31.) Additionally, an evidentiary hearing would not affect Baker’s Career Offender
status, as additional evidence in this case would not affect his two prior felony drug
The arguments Baker raises in support of his § 2255 motion are without merit. He
has failed to 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). Accordingly, Baker’s Motion to Vacate, Set Aside, or Correct Sentence (ECF
No. 61) must be DENIED.
For the foregoing reasons, Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence, pursuant to 28 U.S.C. § 2255 (ECF No. 61) 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: September 13, 2017
Richard D. Bennett
United States District Judge
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