Freeman v. USA-2255
Filing
1
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/27/2012. (c/m 9/27/2012 eb) (ebs2, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JOSEPH FREEMAN
:
v.
:
Civil Action No. DKC 07-0892
Criminal No. DKC 03-0194
:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this habeas
corpus action are numerous motions filed by Petitioner Joseph
Freeman:
a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 (ECF No. 254); a “motion to amend
and
supplement
facts
to
vacate
his
entire
conviction
or
alternatively [to] grant the pe[ti]tioner a bond motion” (ECF
No.
260)
(“first
motion
to
amend”);
a
“motion
to
compel
an
officer of the United States to perform his duty . . . and
motion to expand the record” (ECF No. 296) (“second motion to
amend”); and a “notice of Petitioner’s state conviction being
vacated” (ECF No. 306) (“third motion to amend”).
The relevant
issues have been briefed and the court now rules pursuant to
Local Rule 105.6, no hearing being deemed necessary.
For the
reasons that follow, Petitioner’s first motion to amend will be
granted; his second and third motions to amend will be denied;
and his § 2255 motion, as amended, will be denied.1
I.
Background
By a superseding indictment filed on September 8, 2003,
Petitioner Joseph Freeman was charged with participating in a
large-scale drug conspiracy.
week
trial,
the
jury
On June 16, 2004, after a five-
found
him
guilty
of
conspiracy
to
distribute five kilograms or more of cocaine and fifty grams or
more of cocaine base, in violation of 21 U.S.C. § 846, and four
counts of possession with intent to distribute 500 grams or more
of cocaine, in violation of 21 U.S.C. § 841(a)(1).
At sentencing, Petitioner was assigned an adjusted offense
level of 40 based on the quantity of drugs attributable to him
1
A number of related motions will be summarily denied.
Concomitantly with his § 2255 petition, Mr. Freeman filed a
motion for release on a personal recognizance bond pending the
outcome of this proceeding. (ECF No. 255). That motion will be
rendered moot by the instant opinion and accompanying order.
Petitioner’s “motion for enlargement of time to respond to the
Government’s motion to dismiss” (ECF No. 266) is also moot,
insofar as the Government never filed a motion to dismiss.
Petitioner’s “motion for leave to amend o[r] supplement
pleadings” (ECF No. 273) seeks, in effect, the same relief that
will be denied on the basis of the motions decided herein.
Petitioner’s motion for appointment of counsel (ECF No. 274)
will be denied because Mr. Freeman has not demonstrated that his
petition involves exceptional circumstances.
See Cook v.
Bounds, 518 F.2d 779, 780 (4th Cir. 1975) (“[I]t is well settled
that in civil actions the appointment of counsel should be
allowed only in exceptional cases.”).
Finally, the documents
requested by Petitioner in correspondence dated July 11, 2008 –
which was docketed as a motion for copy work at the expense of
the Government (ECF No. 275) – have been provided at various
points over the course of the litigation.
2
and the foreseeable use of a firearm by a co-conspirator.
He
acknowledged two prior felony convictions in the Circuit Court
for
Prince
conviction
George’s
for
County,
assault
Maryland
–
intent
to
with
specifically,
a
1992
disable
a
1994
and
conviction for possession of cocaine with intent to distribute –
resulting in his designation as a career offender, pursuant to
U.S.S.G. § 4B1.1, and placing him in criminal history category
VI.
Based on these specifications, the sentencing range was
from 360 months to life.
Petitioner was sentenced to concurrent
terms of imprisonment of 360 months to be followed by ten years
of supervised release.2
Judgment was entered on December 15,
2004.
On appeal, Petitioner argued (1) that his sentence violated
the Sixth Amendment under the rule announced in United States v.
Booker,
543
permitting
U.S.
220
evidence
(2005);
of
his
(2)
that
the
co-defendants’
court
erred
confessions
in
and
certain hearsay statements; (3) that his trial counsel rendered
ineffective assistance; (4) that his convictions for possession
with intent to distribute violated the Double Jeopardy Clause of
the
Fifth
Amendment;
evidence of his guilt.
and
(5)
that
there
was
insufficient
The United States Court of Appeals for
the Fourth Circuit declined to review Petitioner’s ineffective
2
More specifically, Mr. Freeman was sentenced to ten years
of supervised release on the conspiracy count and concurrent
eight-year terms on the remaining counts.
3
assistance claim, but affirmed on all other grounds.
States v. Freeman, 167 F.App’x 953 (4th Cir. 2006).
See United
The Supreme
Court of the United States denied his petition for a writ of
certiorari on November 13, 2006.
See Freeman v. United States,
549 U.S. 1042 (2006).
On
April
2,
2007,
Petitioner
filed
a
pro
se
motion
to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§
2255.
(ECF
intelligible,
No.
it
254).
appears
To
to
the
extent
raise
the
this
motion
following
is
grounds:
(1) Petitioner was “tried and convicted by an unconstitutional
Jury Panel, in violation of the law”; (2) “[i]t was ‘Fraud Upon
The Court’ for the Government to prosecute a Possession With
Intent
to
Distribute
Drugs”;
(3)
“[t]he
U.S.
Sentencing
Guidelines [] infringe[d] upon the petitioner’s Fifth Amendment
Rights”;
(4)
“[t]his
case
involve[s]
court
officials
[who]
intentionally violated their A.B.A. Canon Codes”; and (5) his
trial counsel rendered ineffective assistance.
(Id. at 5-6,
“B”).
On June 20, 2007, Petitioner filed his first motion to
amend,
grounds
in
to
which
his
he
appears
§ 2255
to
petition:
request
(1)
the
the
addition
of
two
imposition
of
“an
additional Supervised Release Term beyond [Petitioner’s] maximum
guideline
range”
constituted
“Cruel
and
Unusual
Punishment,
unlawful confinement and an Ex Post Facto Clause violation,” and
4
(2) “the statutory scheme under Title 18 U.S.C. [§] 3553 . . .
[impermissibly] allow[s] judge[s] to increase a defendant[’s]
punishment.”
(ECF No. 260, at 2, 5).
On July 17, 2007, the
Government filed its opposition to Petitioner’s § 2255 petition.
(ECF No. 261).
In addition to filing his § 2255 petition in this court,
Petitioner also sought certain relief from the Circuit Court for
Prince George’s County in connection with his 1994 felony drug
conviction.
On April 11, 2006, Petitioner filed a pro se, ex
parte motion to obtain records and transcripts from the state
court
proceeding
and
“for
show
of
cause
challenge [the] validity of convictions.”
11).
More
than
two
years
later,
on
to
collaterally
(ECF No. 297-1, at
September
4,
2008,
Petitioner filed a motion for a writ of error coram nobis in the
Circuit Court, seeking a belated appeal in his 1994 felony drug
case.
(ECF No. 296-1, at 2).
That petition was granted on
October 9, 2009, and Petitioner noted an appeal to the Maryland
Court of Special Appeals on or about October 30, 2009.
(Id. at
4).
On June 14, 2010, Petitioner filed his second motion to
amend his § 2255 petition, arguing, inter alia, that the record
should reflect the “newly discovered evidence” indicating that
Petitioner is “no longer a career offender” based on the Circuit
5
(ECF No. 296, at 9).3
Court’s October 9, 2009 ruling.
29,
2010,
the
Government
filed
its
response
to
On June
Petitioner’s
motion, arguing that any claim relating to Petitioner’s state
court conviction is barred as untimely.
(ECF No. 297).
In an unpublished opinion issued on June 22, 2011, the
Maryland
search
Court
of
yielding
Special
the
Appeals
cocaine
at
held
issue
that
in
Mr.
felony drug case violated the Fourth Amendment.
at 10-14).
the
warrantless
Freeman’s
1994
(ECF No. 306-1,
The charges against Petitioner were nolle prossed on
or about December 9, 2011.
On February 28, 2012, Petitioner
filed his third motion to amend that attaches a copy of the
Court of Special Appeals’ opinion and requests an order that
(1) “grant[s]
his
pending
2255
Habeas
Corpus
Petition”;
(2) “set[s] a court date for a hearing for re-sentencing;” and
(3) appoints counsel to represent him.
II.
(ECF No. 306).
Motions to Amend
While the Rules Governing Section 2255 Proceedings do not
specifically address the procedure for amendments, “courts have
typically applied Federal Rule of Civil Procedure 15 to the
amendment of a § 2255 motion.”
United States v. Pittman, 209
3
In his motion, Petitioner incorrectly characterized
Circuit Court’s October 9, 2009 ruling as evidence that
state court conviction has been vacated.
(ECF No. 296, at
As set forth above, that ruling only granted Petitioner
right to seek a belated appeal.
Mr. Freeman’s conviction
not vacated until December 9, 2011.
6
the
his
9).
the
was
F.3d 314, 317 (4th Cir. 2000).
Under Rule 15(a), a party may
amend a pleading once as a matter of course at any time within
twenty-one
days
after
service
of
the
response;
otherwise,
amendment is permissible only with the written consent of the
opposing party or upon obtaining leave of the court.
leave
to
requires,”
amend
should
Fed.R.Civ.P.
be
freely
15(a)(2),
given
and
Typically,
“when
should
be
justice
denied
so
“only
when the amendment would be prejudicial to the opposing party,
there has been bad faith on the part of the moving party, or
amendment would be futile,” Matrix Capital Mgmt. Fund, LP v.
BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009).
Furthermore, any amendment to a § 2255 petition that seeks
to
add
one
applicable
or
more
statute
of
new
claims
must
limitations.
also
comply
Pursuant
to
with
28
the
U.S.C.
§ 2255(f), a federal prisoner must file a motion to vacate, set
aside, or correct his sentence within one year of the latest of
the following:
(1) the date on which
conviction becomes final;
the
judgment
of
(2) the date on which the impediment to
making a motion created by governmental
action in violation of the Constitution or
laws of the United States is removed, if the
movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was
initially recognized by the Supreme Court,
if that right has been newly recognized by
7
the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting
the claim or claims presented could have
been discovered through the exercise of due
diligence.
Here, Petitioner filed his first motion to amend on June
20, 2007 (ECF No. 260), approximately one month prior to the
Government’s response (ECF No. 261).
Thus, he is permitted to
add the two new grounds of relief raised therein as a matter of
course under Rule 15(a).4
Moreover, because Petitioner filed the
first motion to amend within one year of the date when judgment
against the Petitioner became final, the newly raised grounds
are timely under 28 U.S.C. § 2255(f)(1).
By contrast, Petitioner’s second and third motions to amend
– both of which were filed long after the Government filed its
response and thus can be granted only if the amendment would not
be futile – do not fare as well.
to
add
a
new
claim
to
At bottom, both motions seek
Petitioner’s
§ 2255
petition
seeking
modification of Mr. Freeman’s sentence based on the vacatur of
his predicate 1994 state court conviction.
4
Petitioner contends
As noted above, Petitioner’s new arguments are that:
(1) the imposition of “an additional Supervised Release Term
beyond [Petitioner’s] maximum guideline range” constituted
“Cruel and Unusual Punishment, unlawful confinement and an Ex
Post Facto Clause violation,” and (2) “the statutory scheme
under Title 18 U.S.C. [§] 3553 . . . [impermissibly] allow[s]
judge[s] to increase a defendant[’s] punishment.”
(ECF No.
260).
8
that his new claim is timely because the vacatur constitutes “a
new ‘fact’ that start[ed] a one-year period in which to seek
collateral
review”
§ 2255(f)(4).
of
his
federal
(ECF No. 296, at 9).
sentence
pursuant
to
The Government rejoins that
Petitioner’s new claim is barred pursuant to the United States
Supreme Court’s decision in Johnson v. United States, 544 U.S.
295 (2005), because Petitioner did not pursue vacatur with the
due diligence required by § 2255(f)(4).5
The argument advanced
by the Government is persuasive.
In Johnson, the Supreme Court confirmed that the vacatur of
a state court conviction upon which a federal sentence is based
constitutes a matter of “fact” for purposes of § 2255(f)(4).
Johnson, 544 U.S. at 302; cf. Custis v. United States, 511 U.S.
485,
497
(1994)
successfully
reopening
of
sentences”).6
(explaining
challenges
any
a
federal
that
state
a
federal
conviction
sentence
enhanced
defendant
may
by
“apply
the
who
for
state
The Johnson Court further held that a petitioner’s
receipt of the vacatur order is the event that triggers the one-
5
Although it was raised in a brief filed prior to the
vacatur of Petitioner’s 1994 conviction, the Government makes
clear that its due diligence argument applies “[r]egardless of
the outcome of the belated appeal of his state conviction.”
(ECF No. 297, at 5).
6
Petitioner does not contend that any of the limitations
periods set forth in § 2255(f)(1)-(3) would be applicable to his
proposed new claim for modification of his sentence based on the
vacatur. (See ECF Nos. 296, 306).
9
year statute of limitations period set forth in § 2255(f)(4).
Johnson, 544 U.S. at 307.
period,
however,
the
To benefit from the new one-year
petitioner
must
also
demonstrate
due
diligence in seeking the vacatur.
Id.; cf. United States v.
Williams,
162
(4th
Johnson’s
due
F.App'x
254,
diligence
257-58
standard
to
Cir.
the
evidence exception to the mandate rule).
with
due
diligence
begins
petitioner’s federal case.
on
the
2006)
newly
(applying
discovered
The obligation to act
date
of
judgment
in
the
Johnson, 544 U.S. at 309 (explaining
that, as between the date of indictment, the date of judgment,
and the date of finality after direct appeal, using the date of
judgment
as
represents
the
the
trigger
best
for
balance
the
due
between
minimizing collateral litigation).
diligence
serving
obligation
finality
and
Applying these standards,
the Johnson Court held that the petitioner – who had waited more
than three years after judgment to attack the predicate state
conviction and offered “no explanation for this delay” – did not
act with due diligence and therefore was precluded from relying
on § 2255(f)(4).
Here,
Mr.
Id. at 311.
Freeman
filed
his
third
motion
to
amend
on
February 28, 2012, just shy of three months after the Circuit
Court
for
Prince
George’s
County
nolle
prossed
the
charges
giving rise to his 1994 state court conviction.
Thus, under the
first
proposed
part
of
Johnson’s
holding,
10
Petitioner’s
claim
seeking modification of his sentence based on the vacatur would
be
well
within
established
by
Petitioner
the
acted
one-year
statute
§ 2255(f)(4).
with
the
The
of
limitations
inquiry
appropriate
level
becomes
of
period
whether
diligence
in
seeking vacatur in the first instance.
Pursuant to Johnson and Williams, the entry of the federal
judgment against Petitioner on December 15, 2004, triggered his
obligation to pursue vacatur with diligence.
As indicated by
the transcripts from sentencing, Petitioner was aware that the
length of his sentence was based, in part, on his 1994 state
court conviction.
Thus, “the significance of inaction” (i.e.,
the significance of not challenging his state court conviction)
became clear no later than this date.
cf.
Williams,
162
F.App’x
at
258
Johnson, 544 U.S. at 309;
(“The
[Johnson]
Court
determined that it was the possibility of an enhanced federal
sentence that would cause a defendant to recognize the need to
challenge the validity of his prior state convictions.”).7
Yet
Petitioner did not file his motion for a writ of error coram
nobis seeking a belated appeal of the state court conviction
until September 4, 2008, a delay of three years and nine months.
As
the
Government
points
out,
7
this
is
far
longer
than
the
Indeed, as the Government points out, Petitioner likely
became aware of the role that his 1994 state court conviction
would play in his sentence as early as May 11, 2004, when he
received notice that the Government intended to seek an enhanced
penalty based on the conviction. (ECF No. 297, at 7).
11
twenty-one
month
period
the
Johnson
constitute an “unreasonabl[e]” delay.
Court
observed
would
Johnson, 544 U.S. at 311
(explaining that even if the period of delay was shortened from
three-plus
years
to
21
months,
petitioner
“would
still
have
delayed unreasonably”); see also In re Milton, 155 F.App’x 614,
617 (3d Cir. 2005) (petitioner did not display due diligence
because “[n]othing further occurred in th[e state court] case
until counsel was appointed on October 3, 1994 - 22 months after
[petitioner’s]
federal
sentence
was
imposed”);
Hamilton
v.
United States, Nos. CV408-138, CR405-121, 2008 WL 4533692, at *2
(S.D.Ga. Oct. 6, 2008) (“The Court finds that [petitioner’s] 21month
delay
in
filing
his
state
habeas
petition
was
unreasonable.”).
In a footnote, the
facts
underlying
the
Johnson
challenge
Court noted that where “the
to
the
state-court
conviction
might themselves not be discoverable through the exercise of due
diligence until after the date of the federal judgment,” the due
diligence
obligation
could
be
Johnson, 544 U.S. at 310 n. 8.
here
as
Plaintiff
there
is
pursued
nothing
vacatur
triggered
at
a
later
point.
This exception is not applicable
in
the
based
on
record
demonstrating
information
that
did
that
not
become discoverable until some point after the federal judgment.
According to the transcript from the hearing on the motion for a
writ of error coram nobis, Petitioner sought a belated appeal of
12
his 1994 conviction based on his state court trial counsel’s
failure to note an appeal, despite Petitioner’s express request
for him to do so.
(See ECF No. 297-2, at 3).
Nothing in the
record indicates that Petitioner mistakenly believed that his
state court counsel had noted an appeal.
harbor
such
a
mistaken
belief,
Even if Petitioner did
however,
his
state
court
attorney’s error was certainly discoverable as of the date of
the federal judgment.
Likewise, according to the opinion of the
Maryland Court of Special Appeals that led to vacatur (ECF No.
306-1),
Petitioner’s
substantive
challenge
to
the
1994
conviction did not rely on any facts that were undiscoverable at
the time of the federal judgment.
Instead, Petitioner argued
that the trial court committed legal error by (1) upholding the
constitutionality of the inventory search yielding the cocaine,
and (2) allowing the cocaine to be introduced into evidence
despite the prosecution’s failure to establish proper chain of
custody.
(Id. at 1).
Hence, because Petitioner’s challenge to
the state court conviction did not depend on facts that were
undiscoverable
at
the
time
of
the
federal
judgment,
the
exception contemplated by Johnson cannot be relied on here.
As the Government concedes, Petitioner did file a pro se
motion to obtain records and transcripts relating to his state
court
months
proceedings
after
on
entry
April
of
11,
judgment
13
2006,
approximately
against
him
in
seventeen
the
federal
proceedings.
the
state
(ECF No. 297, at 7; ECF No. 297-1, at 11).
court
docket,
that
motion
expressly
Per
referenced
challenging the validity of the state court convictions.
(Id.)
After the state court responded by requesting payment for the
documents, Petitioner filed a second motion on July 6, 2006,
seeking
to
indigence.
be
excused
from
paying
(ECF No. 297-1, at 12).
the
costs
due
to
his
Petitioner did not file his
motion for a writ of error coram nobis until September 4, 2008,
twenty-six months later.
Similar
defendant
facts
received
were
his
presented
federal
in
Williams,
sentence
in
August
where
the
1999
but
waited until April 2003 to seek modification of his predicate
state
court
convictions,
162 F.App’x at 260.8
a
period
of
three-and-a-half
years.
The Fourth Circuit noted that the defendant
8
Although Williams did not involve a § 2255 petition, the
Fourth Circuit’s holding is relevant to whether Mr. Freeman
diligently sought vacatur here.
In Williams, after the
defendant’s second appeal, the Fourth Circuit vacated the
sentence imposed by the trial court and remanded with explicit
and specific instructions regarding re-sentencing, including how
the defendant’s prior state court drug convictions should affect
the sentencing range.
162 F.App’x at 255.
Just prior to resentencing in the district court, the defendant sought and
received an order from the state court retroactively modifying
his predicate convictions, which were changed from convictions
for the sale of crack cocaine to convictions for the possession
of crack cocaine.
Id.
In determining whether the district
court erred in refusing to deviate from the Fourth Circuit’s
remand instructions based on the modified convictions, the
Williams court considered the applicability of the “new
evidence” exception to the mandate rule and held that Johnson
14
took “some limited action” in connection with challenging his
state
convictions
in
early
2000
–
approximately
five
months
after entry of the federal judgment – by requesting transcripts
from the earlier proceedings.
See id.
After his requests were
denied in April 2000, the petitioner’s “efforts then came to a
halt, to finally be revived in April 2003,” three years later.
Id.
The Fourth Circuit concluded that “requesting a transcript
(which,
so
far
as
the
record
reveals,
was
not
necessary
to
obtaining the modification of the state convictions) and then
abandoning the effort for three years” does not amount to the
exercise of due diligence.
Id.; see also In re Milton, 155
F.App’x at 617 (“Although a request for a transcript may be a
preliminary step toward challenging a conviction, the request by
itself does not show due diligence.”).
Likewise here, it cannot be said that Petitioner’s efforts
to obtain the state court records amounts to the due diligence
required by § 2255(f)(4) and
Johnson.
Based on the present
record, the state court documents requested were not necessary
for
Petitioner
to
obtain
either
the
belated
appeal
conviction or the ultimate vacatur of the conviction.
of
the
Indeed,
the transcript from the hearing on the motion for a writ of
error coram nobis makes clear that the Circuit Court granted the
was instructive because, like § 2255(f)(4), that exception
requires the exercise of due diligence. Id. at 256-57.
15
writ based solely on Petitioner’s representation – which was not
corroborated by anything in the state court docket – that his
trial counsel ignored his request to pursue an appeal.
(See ECF
No. 297-2, at 4-5).
Likewise, the Maryland Court of Special
Appeals
cocaine-yielding
declared
the
unconstitutional
based
on
its
inventory
search
interpretation
of
a
to
be
local
ordinance that was not cited by either party in the proceedings
below or on appeal.
(See ECF No. 306-1).
Moreover, Petitioner
waited seventeen months after sentencing to seek the records,
far
longer
than
the
five-month
period
between
the
federal
judgment and the requests for transcripts at issue in Williams.
Finally, as in Williams, Petitioner’s efforts to challenge his
state court conviction “came to a halt” after July 2006, as he
waited an additional 26 months to file his motion for a writ of
error coram nobis.
Of
course,
in
evaluating
due
diligence,
the
individual
circumstances of the petitioner should be considered, “including
the
practical
realities
of
the
petitioner’s
confinement.”
United States v. Longshore, 644 F.Supp.2d 658, 662 (D.Md. 2009)
(citing Jones v. United States, 20 F.App’x 520, 523 (7th Cir.
2001)).
Importantly, however, it is the Petitioner’s burden to
demonstrate due diligence.
McKinnon v. United States, Civ. No.
CCB–12–179, Crim. No. CCB–08–049, 2012 WL 2564723, at *2 (D.Md.
June 29, 2012).
Here, Petitioner never directly responded to
16
the
Government’s
arguments
regarding
due
diligence
and
never
provided any explanation of his delay in seeking vacatur.9
That
Petitioner is proceeding pro se is not sufficient, in and of
itself, to excuse his lack of diligence.
Johnson, 544 U.S. at
311
alone
(rejecting
“pro
se
representation
or
procedural
ignorance as an excuse for prolonged inattention” to challenging
predicate state court convictions); McKinnon, 2012 WL 2564723,
at *2 (the petitioner’s “lack of familiarity with the law and
poor advice from other inmates” was insufficient to establish
due diligence under § 2255(f)(4)).
Based on the binding precedent set forth in Johnson and
Williams, Petitioner’s unexplained delay in seeking to overturn
the 1994 state court conviction cannot be deemed reasonable,
precluding
Petitioner’s
reliance
on
§ 2255(f)(4).10
Hence,
9
In a handwritten affidavit filed with his original § 2255
motion, Petitioner avers that he “told [his federal court trial
counsel] to challenge his state conviction before we went to []
federal trial” and that his federal trial counsel responded to
this request by stating “that he needed more money.”
(ECF No.
254).
Even liberally construed, this statement does not offer
any explanation that would excuse Petitioner’s lack of diligence
because it does not give rise to an inference that Petitioner
waited to seek vacatur on his own because of a mistaken belief
that his federal trial counsel was seeking such relief on his
behalf.
To the contrary, the affidavit establishes that
Petitioner knew his federal trial counsel would not challenge
the state court conviction absent additional payment.
10
Although Petitioner does not explicitly argue that
equitable tolling should apply to his proposed new claim, such
an argument also would be futile.
The Supreme Court has held
that a petitioner is “entitled to equitable tolling only if he
17
Petitioner’s second and third motions to amend will be denied
because the proposed new claim relating to the vacatur of his
predicate state court conviction would not be timely.
III.
Motion to Vacate
A.
Standard of Review
Title
28,
§
2255,
requires
a
petitioner
to
prove
by
a
preponderance of the evidence 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[.]”
§ 2255(a).
28 U.S.C.
A pro se petitioner, such as Mr. Freeman, is, of
course, entitled to have his arguments reviewed with appropriate
consideration.
Cir. 1978).
files
and
See Gordon v. Leeke, 574 F.2d 1147, 1151-52 (4th
Where, however, a § 2255 petition, along with the
records
of
the
case,
conclusively
shows
that
the
petitioner is not entitled to relief, a hearing on the motion is
shows (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, ––– U.S. ––––,
130 S.Ct. 2549, 2562 (2010) (internal quotations omitted)
(emphasis added); see also United States v. Prescott, 221 F.3d
686, 688 (4th Cir. 2000) (equitable tolling should be “sparingly
granted”). As explained above, Petitioner has not demonstrated
the diligent pursuit of his rights in connection with
challenging his state court conviction and therefore is not
entitled to equitable tolling.
18
unnecessary
summarily.
and
the
claims
raised
therein
may
be
dismissed
See 28 U.S.C. § 2255(b).
B.
Analysis
The
grounds
raised
in
Petitioner’s
§
2255
motion
–
as
supplemented by the first motion to amend – are without merit.
As to most of these claims, Mr. Freeman does little more than
broadly assert vague allegations of error – e.g., “petitioner
was tried and convicted by an unconstitutional Jury Panel, in
violation
of
the
law”
–
which
he
then
supports
with
wholly
inapposite legal principles – e.g., that the above error was “a
violation of the ‘Separation of Power’ doctrine for a trial
judge to ‘delegate’ his or her ‘Judicial Power’ to 12 citizens
on
a
Jury
Panel,
to
make
the
final
resolution
.
.
.
on
petitioner’s guilty verdict, without causing a ‘Miscarriage of
Justice.’”
(ECF No. 254, at 5).
Deciphering the meaning of
such arguments is, at best, guesswork.
these
claims
generally
fall
into
one
Nevertheless, all of
of
two
categories:
(1) those that are procedurally barred by virtue of the fact
that they were either not raised or previously decided on direct
appeal, and (2) bald allegations of ineffective assistance of
trial counsel.
1.
Procedural Default
The ordinary rule is that “an error can be attacked on
collateral review only if first challenged on direct review.”
19
United States v. Harris, 183 F.3d 313, 317 (4th Cir. 1999); see
also United States v. Sanders, 247 F.3d 139, 144 (4th Cir. 2001)
(“[h]abeas review is an extraordinary remedy and will not be
allowed to do service for an appeal”) (internal quotation marks
and
citation
defaulted
a
omitted).
Where
constitutional
a
claim
petitioner
has
procedurally
by
to
raise
failing
it
on
direct appeal, it may be raised for the first time in a § 2255
motion only upon a showing of either “cause and actual prejudice
resulting
from
the
errors
of
which
he
complains,”
or
a
demonstration that “a miscarriage of justice would result from
the refusal of the court to entertain the collateral attack.”
United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir.
1999).
A showing of cause for a procedural default “must turn on
something external to the defense, such as the novelty of the
claim
or
a
denial
of
effective
Mikalajunas, 186 F.3d at 493.
assistance
of
counsel.”
To establish actual prejudice,
the petitioner must show that the error worked to his “actual
and
substantial
disadvantage,”
possibility of prejudice.
(1986).
would
than
merely
creating
a
Murray v. Carrier, 477 U.S. 478, 494
A petitioner demonstrates that a miscarriage of justice
result
defaulted
rather
if
claim
the
by
court
showing
does
not
“actual
consider
innocence
a
procedurally
by
clear
and
convincing evidence” – in other words, “actual factual innocence
20
of the offense of convictions, i.e., that petitioner did not
commit the crime of which he was convicted[.]”
Mikalajunas, 186
F.3d at 494.
Here, Petitioner was required to raise the following claims
on
direct
allegedly
appeal,
if
at
all:
“unconstitutional”;
(1)
(2)
that
that
the
“it
jury
was
panel
fraud
on
was
the
court for the government to prosecute [him for] possession with
intent to distribute drugs” because the jury could not determine
his “mental intent” to distribute drugs; (3) that the sentencing
guidelines “infringe[d] upon [his] Fifth Amendment [r]ights”;
(4)
that
“court
officials
intentionally
violated”
ethical
principles because the court was “swayed” by “bad provisions of
the
law”;
(5)
that
the
imposition
of
concurrent
terms
of
supervised release constituted “Cruel and Unusual Punishment,
unlawful confinement and an Ex Post Facto Clause violation”; and
(6) that “the statutory scheme under Title 18 U.S.C. [§] 3553 .
.
.
[impermissibly]
allow[s]
defendant[’s] punishment.”
judge[s]
to
increase
a
To the extent that these claims were
not raised on direct appeal, Petitioner bears the burden of
showing either cause and actual prejudice resulting from the
alleged error, or that he is actually innocent of the crimes for
which he stands convicted.
He had made no such showing here.
It appears, moreover, that at least one of these issues was
addressed
by
the
Fourth
Circuit.
21
On
appeal,
Petitioner
challenged the “the sufficiency of the evidence, claiming there
was no tangible evidence linking him to the charges and the
witnesses against him were not credible.”
at 954.
Freeman, 167 F.App’x
The appellate court determined that this argument was
“without merit,” specifically finding that “there was sufficient
evidence
to
distribute
at
establish
least
Freeman
500
grams
possessed
of
cocaine
with
on
intent
four
to
separate
occasions as a result of evidence of his trips to California.”
Id.
at
955.
Petitioner’s
second
ground
for
relief
in
the
instant motion may be read as a challenge to the sufficiency of
evidence of his intent to distribute cocaine.
To the extent
that this argument was addressed on direct appeal, it is not
cognizable in his § 2255 motion.
Johnson v. United States,
No[s]. Civ. PJM-08-2623, Crim. PJM 02-0178, 2010 WL 2573212, at
*2 (D.Md. June 22, 2010) (“petitioner may not, through a habeas
petition,
relitigate
an
issue
previously
rejected
on
direct
appeal”) (citing Boeckenhaupt v. United States, 537 F.2d 1182,
1183 (4th Cir. 1976)).
In any event, each of the six grounds set forth above has
been procedurally defaulted.
Crim.
No.
5:05-CR-00019,
See United States v. Konsavich,
Civ.
No.
5:08-CV-80100,
2009
WL
1759555, at *10 (W.D.Va. June 19, 2009) (“[C]laims [that] were
either not raised on direct appeal or raised and decided by the
Court of Appeals . . . are procedurally defaulted.”).
22
Because
Petitioner fails to show either actual innocence or cause and
prejudice, the merits of these grounds will not be reached.
2.
The
Ineffective Assistance of Counsel
sum
and
substance
of
Petitioner’s
ineffective
assistance claims consists of what appears to be an excerpt from
an unrelated motion setting forth the relevant legal standard
and the following six allegations:
[1]. Trial counsel
the indictment[;]
[]
failed
to
[2]. Trial counsel [] failed to
file adequate pretrial motions[;]
challenge
properly
[3]. Trial counsel [] failed to challenge
the Constitutionality of the U.S. Sentencing
Guideline[s], swayed judge’s decision to
violate the Double Jeopardy Clause[;]
[4]. Trial counsel [] failed to object to
the court imposing a consecutive sentence of
Supervised Release Term[;]
[5]. Trial counsel [] failed to argue[] the
unconstitutionality of the Grand Jury and
Jury
Panel,
as
well
as
a
tainted
indictment[;]
[6]. Trial counsel [] engage[d] in[] a
“Fraud Upon The Court” by allowing the
Government to expose the defendant to a
miscarriage of justice.
(ECF No. 254, at “B”).
These
claims
are
governed
by
the
well-settled
standard
adopted by the Supreme Court in Strickland v. Washington, 466
U.S. 668 (1984).
Pursuant to Strickland, the petitioner must
23
show both (1) that the performance of his attorneys fell below
an objective standard of reasonableness and (2) that he suffered
actual
prejudice.
demonstrate
See
actual
Strickland,
prejudice,
he
466
U.S.
must
show
at
a
687.
To
“reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Id. at
694.
In applying Strickland, a strong presumption exists that
counsel’s
conduct
falls
within
a
wide
range
of
reasonably
professional conduct, and courts must be highly deferential in
scrutinizing counsel’s performance.
Thompson,
949
F.2d
1354,
1363
See id. at 688-89; Bunch v.
(4th
Cir.
1991).
The
reasonableness of attorney conduct must be judged “as of the
time
their
actions
after the fact.”
occurred,
not
the
conduct’s
consequences
Frye v. Lee, 235 F.3d 897, 906 (4th Cir. 2000).
Furthermore, a determination need not be made concerning the
attorney’s performance if it is clear that no prejudice would
have
resulted
deficient.
even
had
the
attorney’s
performance
been
See Strickland, 466 U.S. at 697.
As to the first allegation, Petitioner has not suggested
the
manner
indictment.
in
which
Even
his
if
counsel
Mr.
should
Freeman
have
could
challenged
show
the
deficient
performance, he has made no showing of prejudice, nor could he
under the circumstances of this case.
24
See United States v.
Mechanik, 475 U.S. 66, 73 (1986) (“[T]he petit jury’s verdict
rendered harmless any conceivable error in the charging decision
that might have flowed from the violation.”); see also White v.
United States, Civ. No. WDQ-06-2875, Crim. No. WDQ-03-0375, 2007
WL 2461051, at *5 (D.Md. Aug. 24, 2007) (“Any error in [the
petitioner’s] grand jury proceedings was rendered harmless by
the
trial
jury’s
determination
of
his
guilt.”
(citing
Mechanik)).
Similarly,
Petitioner
has
with
to
identified
not
respect
any
counsel should have filed.
a
“reasonable
the
second
pretrial
allegation,
motions
that
his
Nor has he alleged, much less shown,
probability,”
that
“but
for
counsel’s
unprofessional errors, the result of the proceeding would have
been different.”
Petitioner’s
rendered
Strickland, 466 U.S. at 694.
third
ineffective
constitutionality
allegation
assistance
of
the
by
–
i.e.,
failing
sentencing
that
to
his
counsel
challenge
guidelines,
the
thereby
resulting in a Double Jeopardy violation – appears to relate to
a
claim
Circuit.
specifically
considered
and
rejected
by
the
Fourth
Because this claim is meritless, his trial counsel’s
representation could not have been constitutionally deficient
for failing to raise it.
See Baker v. Corcoran, 220 F.3d 276,
293 n. 15 (4th Cir. 2000).
25
The fourth ground, that trial counsel failed to object to
the imposition of consecutive terms of supervised release, is
belied
by
the
judgment
of
Petitioner
was
sentenced
to
conviction,
which
reflects
concurrent
terms
of
that
supervised
release.
Petitioner
counsel
grand
has
should
or
have
petit
assistance.
not
identified
challenged
juries,
Thus,
his
he
has
the
fifth
not
the
basis
upon
which
constitutionality
of
allegation
of
shown
deficiency
any
his
the
ineffective
in
performance or prejudice resulting therefrom.
Finally, his sixth allegation – that his counsel somehow
engaged in “fraud upon the court” by “allowing the Government to
expose the defendant to a miscarriage of justice” – is similarly
undeveloped and finds no support in the record.
IV.
Conclusion
For
the
foregoing
reasons,
Petitioner’s
first
motion
to
amend will be granted; his second and third motions to amend
will be denied; and his motion to vacate, set aside, or correct
his sentence (as amended) will be denied.
Pursuant to Rule 11(a) of the Rules Governing Proceedings
Under 28 U.S.C. § 2254 or 2255, the court is also 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
26
from the court’s earlier order.
F.3d 652, 659 (4th Cir. 2007).
United States v. Hadden, 475
A certificate of appealability
may issue “only if the applicant has made a substantial showing
of
the
denial
2253(c)(2).
of
a
constitutional
right.”
28
U.S.C.
§
Where the court denies 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.
Slack v. McDaniel,
529 U.S. 473, 484 (2000); see also Miller–El v. Cockrell, 537
U.S.
322,
336–38
(2003).
Where
a
motion
is
denied
on
a
procedural ground, a certificate of appealability will not issue
unless the petitioner can demonstrate both “(1) that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and (2) that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.”
Rose v. Lee, 252
F.3d 676, 684 (4th Cir. 2001) (internal quotation marks omitted).
Petitioner
does
not
satisfy
the
above
standard,
certificate of appealability will not issue.
A separate order will follow.
_______/s/__________________
DEBORAH K. CHASANOW
United States District Judge
27
and
a
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?