Sykes v. USA-2255

Filing 4

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 11/16/2018. (kw2s, Deputy Clerk)

IN THE UNITED

STATES DISTRICT

FOR THE DISTRICT
ROBERT WILLIAN SYKES,JR.

COURT

OF ML\RYLAND

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Petitioner,
Civil No. RDB-18-0690

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*

v.
UNITED

STArES

Criminal No. RD B-15-04 58

x

OF AMERIC\

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Respondent.
*

*

*

x

*

x

*

MEMORANDUM
On December

*
OPINION

x

*

*

3, 2015, Robert Williams Sykes, Jr. ("Sykes" or "Petitioner")

*

pled

guilty to two counts of Hobbs Act Robbery, in violation of 18 U.S.c. ~ 1951(a). On April 6,
2016, Judge ;'\[an'in J. Garbis of this Court sentenced Pctitioner to seventy-two (J2) months
imprisonment,

followcd by supen.ised

release for a term of three (3) years.1 On [\pril 13,

2016, Petitioncr appealed his sentence to the United States Court of Appeals for thc Fourth
Circuit on the grounds

that this Court miscalculated

his sentencing guidelincs by dcnying

him a three level reduction and erred by denying his motion for a downward departure. On
Dceember

20, 2016, thc Fourth Circuit affmned

.lykeJ, No. 16-4206,671

the Petitioner's

sentence.

United StateJ v.

F. l\pp'X 199 (4th Cir. Dcc. 20, 2016).

On ]\[arch 8, 2018, Petitioner

filed the pending 1\[otion to Vacate, Set Asidc, or

Correct Sentence undcr 28 U.S.c. ~ 2255, arguing that his counsel was ineffective during his

1 This

case was subsequently reassigned to the undersigned Judge onJuly 12,2018.

1

sentencing. (ECF No. 68.).2 The parties' submissions have been reviewed, and no hearing is
necessary. Jee Local Rule 105.6 (D. ~[d. 2016). ror the reasons stated herein, Petitioner
Sykes' i\[otion to Vacate, Set Aside, or Correct Sentence under 28 USc.

~ 2255 (ECr No.

68) is DENIED.

BACKGROUND
On August

20, 2015, a federal grand jury in Maryland

returned

an indictment

charging Petitioner Svkes with two counts of Hobbs 1\ct Robbery, in violation of 18 U.S.c. ~
.
.
1951 (a). i\ccording

to the statement

of facts set forth in the Presentence

Investigation

Report (ECF No. 25) to which the Petitioner agreed, on Noyember

30, 2014 Sykes walked

into a Family Dollar Store in Baltimore City, Nlaryland, approached

the front counter, and

demanded
complied

money or threated
and handed

that he would start shooting.

(ECF No. 25.) The cashier

Sykes about 597.00 before he fled. (Id.) 1\ customer

in the store

followed Sykes out the door and took a picture of him as he was entering the driver's side
door of a Cadillac. (Jd.) ,\ few days later, on December 2, 2014, Sykes entered the ,\d,-ance
Auto Parts in Baltimore City, Maryland, holding a bb-gun in his left hand. (Id.) He demanded
that both employees at the register give him money from the register. (Id.) When they told

2 l\lso pending is Petitioner's Motion for Default, which he fLIedon June 28, 2018. (ECF No. 72.) Petitioner's
i\.Iotion for Default argues that this Court "should enter an order granting Habeas Corpus i\.lotion ... due to
neglect by the Cnitco States Attorney" for failing to ftle a timely response to Petitioner's l\lotion to Vacate. Id
As Goycrnmcnt counsel who responded to Petitioner's i\.lotion did not enter this case, ho\vever, until almost
three months after this Court directed the Government to respond to the l\!ollon within sixty days, there is
good cause to extend the Government's time to respond and Sykes' ~lotion for Default (ECr No. 72) is
DENIED. See Federal Rule Ci\"ill'rocedure (,(b) ("\'i11tn an act mayor must be done "ithin a specified time,
the court may, for good cause, extend the time ... \\lith or without motion or notice if the courts act, or if a
request is made, before the original time or its extension expires ... or on motion made after the time has
expired if the party faik'd to act because of (,xcllsablc ncglccl.")

2

him that they could not open the register without a key, he fled the store. (ld.) On December
3,2015, Petitioner pled guilty to both counts of Hobbs l\ct Robbery. (ECf No. 21.)
At Petitioner's

sentencing

on April 6, 2016, the Presentence

Investigation

Report

assigned Petitioner nine criminal history points, resulting in a criminal history category IV
and an advisory guideline range of sixty-three (63) to seventy-eight
25 '/18-31,

34-37, 72.) •.t sentencing, the Government
\

whether the Government

(78) months. (ECF No.

and defense counsel disagreed o\'er

should be permitted to introduce evidence of uncharged conduct.

(Sent. Tr., ECF No. 59 at 15-19.) Ultimately, this Court permitted
introduce

e\'idence

of uncharged

conduct,

indicating

the Government

that whether

the evidence

to
was

excessi\'e would depend on the relevant factors found in 18 U.s.c. ~ 3553. (Id. at 19.) ,\fter
the presentation

of evidence and witness testimony and legal argument, this Court sentenced

Sykes within the guideline range to seventy-two

(72) months

imprisonment

followed by

supervised release for a term of three (3) years. (ECF No. 49.)
On l\pril 12,2016, Sykes appealed his sentence to the United States Court of l\ppeals
for the Fourth
denying
downward

Circuit, on the grounds

him a three le\"el attempt
departure.

that this Court miscalculated

reduction

and erred by denying

(ECF No. 51.) On December

the judgment of this Court. J'ee United StateJ

I'••

the guidelines
his motion

by

for a

20, 2016, the Fourth Circuit affrrmed

5jkeJ, No. 16-4206,671

F. App'x 199 (4th Cir.

Dec. 20, 2016). On ,\larch 8, 2018, Sykes filed the pending l\Iotion to Vacate, Set •.side, or
\
Correct Sentence

under 28 U.S.c. ~ 2255, arguing his counsel was ineffective during his

sentencing. (ECF No. 68.)

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STANDARD OF REVIEW
This Court recognizes that Petitioner is pro .reand has accorded his pleadings liberal
construction.

See Eri,kson

tJ.

ParduJ, 551 U.S. 89, 94 (2007). Under 28 U.s.c.

~ 2255, a

prisoner in custody may seek to ,"acate, set aside, or correct his sentence on four grounds: (1)
the sentence was imposed in violation of the Constitution

or laws of the United States, (2)

the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of
the maximum

authorized

attack. Iliff

Uniled SlaleJ, 368 U.S. 424, 426-27

tJ.

by law, or (4) the sentence is otherwise

subject to a collateral

(1962) (citing 28 U.S.c. ~ 2255). When

seeking relief under 28 U.S.c. ~ 2255, a petitioner bears the burden of proving his or her
grounds

for collateral relief by a preponderance

of the evidence.' Milfer

tJ.

Uniled Slales, 261

F.2d 546, 547 (4th Cir. 1958).

ANALYSIS
I.

Petitioner's

Motion is Timely

£\t the outset, this Court notes that the Petitioner's
year statute

of limitations

2255(f), limitations

applies

to ~ 2255 petitions. See 28 U.S.c.

~ 2255(f).

Under

~

runs from the latest of, among other things, the date on which the

judgment of com'iction

becomes

final. Jd. Here, Petitioner's

Fourth Circuit on December 20,2016.
20,2017,

~ 2255 Motion is timely. r\ one-

His Judgment

sentence was afftrmed by the

then became final on or around March

when he did not petition the Supreme Court for certiorari. Clqy

U.S. 522, 525, 123 S. Ct. 1072 (2003). Therefore,

tJ.

Uniled Slales, 537

Petitioner had until March 20, 2018 to file

the instant ~ 2255 Motion. Because he filed his Motion on March 8, 2018, his ;\Iotion is
timel\'.

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II.

Petitioner's

Petitioner
l\mendment

Ineffective

Assistance

of Counsel

Claim Fails

Sykes asserts that his counsel was ineffective

right to the United States Constitution

in \'iolation

of his Sixth

because he alleges that his counsel failed

to object to an incorrect calculation of prior conyictions

in his presentence

inyestigation

(ECF No. 68.) To

report and failed to object to the use of an un counseled misdemeanor.

preyail on an ineffective assistance of counsel claim, a habeas petitioner must satisfy the twopart test set out in Stn,.kland v. lI7a.rhing/on, 466 U.S. 668, 687 (1984). Under the fIrst step, the
petitioner

must establish "that counsel's performance

that counsel
guaranteed

made errors so serious that counsel

the defendant by the Sixth l\mendment."

there is a "strong

presumption

that counsel's

was defIcient. This requires showing
was not functioning

as the 'counsel'

ld. When eyaluating attorney conduct,

conduct

falls within

the wide range of

reasonable professional assistance." ld. at 689.
Under the second step, the petitioner
prejudiced

must show "that the defIcient performance

the defense. This requires sh()\\~ng that counsel's errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable." ld. at 687. The petitioner
must demonstrate

not only that counsel's defIcient conduct has a reasonable probability of

affecting the outcome
proceeding

of the proceeding,

was fundamentally

unfair

but also that, because of it, the "result of the

or unreliable." Lo,.khart

v. Fre/we/I, 506 U.S. 364,

3(,')(1993). Thus, as noted by the United States Court of ,\ppeals

for the Fourth Circuit, the

mere possibility that a result may haye been different is not sufflcient to satisfy the prejudice

5

prong. (footJ v. Allsbrook,785

F.2d

1214, 1220 (4th Cir. 1(86). This

Court

addresses

Petitioner's two claims below.
a. Counsel's Alleged Failure
His Prior Convictions

to Object

To An Incorrect

Calculation

of

First, Sykes claims that his counsel was ineffective by failing to object to an incorrect
calculation
Nowhere

of prior convictions

in his presentence

investigation

report.

(ECF No. 68.)

in his ~ 2255 I\lotion, however, does Sykes indicate what prior com'ictions

asserts were incorrectly

calculated. Rather, Sykes attached

to his Motion

he

an affidavit of

probable cause for Sykes' arrest in 2007 and a self-serving affidavit that contradicts

the facts

in the statement of probable cause.
The Fourth
contained

Circuit has previously

in a ~ 2255 petition may be disposed

District Court." United StateJ
affidavit of probable

I'.

qyw,

of without

cause and Sykes' affidavit support

Therefore,

and conclusory

allegations

further investigation

by the

730 F.3d 354, 359 (4th Cir. 2013). It is unclear how the

counsel failed to object to the presentence
convictions.

held that "lvlague

because Petitioner

investigation

the contention

that Petitioner's

report's accounting of Sykes' prior

offers no more than a vague and conclusory

allegation in his ~ 2255 I\lotion, this claim fails.
b. Counsel's

Alleged Failure to Object to a Misdemeanor

Second, Sykes claims that his counsel failed to object to a misdemeanor
which according to Sykes, should not have contributed
he was never represented

Conviction
drug conviction,

to his criminal history points because

by counsel \\~th respect to the misdemeanor

charge. (ECF No. 68.)

The Fourth Circuit has held that "[wlhen a prior conviction is used to assess the applicable

6

criminal history category of a defendant, ... the burden [is] on the defendant to at lcast raisc
an inference of the invalidity of thc prior conviction."

Uniled Slalu v. Collins, 415 F.3d 304,

316 (4th Cir. 2005). With respect to a claim that the defendant

was not represented

counsel on a prior conviction, "[tJhe dcfcndant must overcome a presumption

by

that thc state

court informed him of his right to counsel as it was required to do, and that, if he was not
rcprcsented,

it was because he waivcd his right to counseL"

App'x 202, 202 (4th Cir. 2014). The Fourth

Uniled Slales v. Fosler, 565 F.

Circuit has repeatedly

stated, "self-sctTing

tcstimony of the [petitioner] is generally not sufficient to overcome that presumption"
the state court informcd

that

him of his right to counsel and he waivcd it. Id. (quoting Uniled

Slales l'. .lones, 977 F.2d 105, 111 (4th Cir. 1992)).

rn

his Motion, Sykes does not provide any substantive

evidence to Q\'ercome the

presumption

that he was informcd

him of his right to counsel

misdemeanor

chargc and that he waived that right. Rather, hc attached an affidavit as proof

that he did not waive his right to counseL Outsidc
sentencing

in qucstion,

Sykes offers no cvidencc

l\mendmcnt

right to counseJ.3 Morcover,

misdcmeanor

was improperly

considcred

with respect

to his

of his affidavit, flied years after thc
that his conviction

,'iolatcd

his Sixth

he also has failed to show that even if the
by this Court, his counsel kncw or should have

known and objected to its considcration.
Further, even if Petitioner

met his burden of showing that the misdemeanor

was

impropcrly considercd and his counsel was incffccti,'c for failing to object during sentencing,
.\ [-,Ir. Sykes provides in his Reply to the Government's
Response (ECF No. 76) another Affidavit, which
more vividly depicts the alleged deficiency by counsel. Ho\vcver, this Affida\-it once again fails to overcome
the presumption that the state court infonncu him of his right to counsel and he \vai,.ed it, because it merely
prm'ides self-serving teSlimony . .1'" FOJI,r, 565 F. App'x 202, 202 (4th Cir. 2(14).

7

Sykes' claim fails on the second prong of the .llrickland analysis because he has not shown
that prejudice
l\ssistant

resulted

from counsel's

Federal Public Defenders,

With respect to previous uncharged
category

was overrepresented

deficient

performance.

counsel,

two

vigorously advocated on his behalf during sentencing.
conduct,

because

his counsel argued that his criminal history

two of the offenses

eighteen years old and two offenses were "minor non-violent
No. 59 at 11-12.) After the presentation
argument,

Petitioner's

of e\'idence

occurred

when

Sykes was

and remote in time." (ECF

and witness

testimony

and legal

this Court sentenced Petitioner within his guideline range, and his sentence was

subsequently

affim1ed by the Fourth Circuit. For these reasons, Petitioner

has now shown

that his counsel was ineffective during the sentencing process, and his ineffecti\'e assistance
of counsel claim fails. Therefore,

Sykes' l\lotion to Vacate, Set l\side, or Correct Sentence

under 28 U.S.c. ~ 2255 (ECF No. 68) is DENIED.

CONCLUSION
For the reason stated abm'e,

Petitioner

Sykes' l\[otion

to Vacate, Set Aside, or

Correct Sentence under 28 U.S.c. ~ 2255 is DENIED.
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 when it enters a final order
ad,'erse to the applicant. 1\ certificate of appealability is a "jurisdictional
appeal from the court's earlier order. Uniled SlaleJ

I).

prerequisite"

to an

Hadden, 475 F.3d 652, 659 (4th Cir.

20(7). 1\ certificate of appealabiliry may issue "only if the applicant has made a substantial
showing of the denial of a constitutional
denies petitioner's

right." 28 U.S.c. ~ 2253(c)(2). Where the court

motion on its merits, a petitioner satisfies this standard by demonstrating

8

that reasonable jurists would find the court's assessment of the constitutional claims
debatable or wrong. See S/at-k v. McDaniel, 529 U.S. 473, 484 (2000); see a/so Mi//er-E/ v.
Cockrell, 537 U.S. 322, 336-38 (2003). Because reasonable jurists would not find Sykes' claim
debatable, a certificate of appealability is DENIED.

Dated:

November 16, 2018

/24~J$
Richard D. Bennett
United States DistrictJudge

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