Pender v. USA-2255

Filing 1

MEMORANDUM OPINION (c/m to Anthony Pender 3/29/12 sat). Signed by Chief Judge Deborah K. Chasanow on 3/29/12. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ANTHONY PENDER
:
v.

:

Civil Action No. DKC 09-0034
Criminal Case No. DKC 06-0083

:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for review is the motion of
Petitioner Anthony Pender to vacate, set aside, or correct his
(ECF Nos. 50, 51).1

sentence pursuant to 28 U.S.C. § 2255.

The

issues have been briefed, and the court now rules, no hearing
deemed necessary.

Local Rule 105.6.

For the following reasons,

Petitioner’s motion will be denied.
I.

Background
On

indicted

February
on

convicted

two

felon,

27,

2006,

counts:
and

(2)

Petitioner

(1)

possession

possession

of

cocaine base with intent to distribute.
Petitioner
grounds,

1

moved

to

including

suppress
that

Anthony

certain

statements

of

50

Pender

a

firearm

grams

or

was
by

more

a
of

After his arraignment,
evidence
made

by

on
him

several
were

Two identical petitions were filed. First, counsel filed
a petition on January 8, 2009 (ECF No. 50), though counsel did
not enter an appearance.
Second, Petitioner signed a petition
on January 13, 2009, which was received January 16, 2009. (ECF
No. 51).

involuntarily
apartment

given

was

made

and

that

without

the

warrantless

proper

search

consent.

The

of

his

motion

was

denied.
After the government filed a notice of prior convictions
under 21 U.S.C. § 851,2 Petitioner’s case then proceeded to trial
before a jury.
December

4,

He was found guilty on both counts and on

2006,

was

sentenced

to

120

months

imprisonment,

followed by three years of supervised release on Count One, and
to

a

mandatory

released,

by

sentence

ten

years

of
of

life

imprisonment,

supervised

release

followed,
on

Count

if

Two.

Petitioner appealed to the United States Court of Appeals for
the Fourth Circuit, arguing that the motion to suppress should
have been granted and that, even if denied, the totality of the
evidence

was

insufficient

count.

Dispensing

with

to

sustain

oral

a

argument,

conviction
the

affirmed his convictions on January 11, 2008.
Pender, 261 F.App’x 576 (4th Cir. 2008).
February 4, 2008.

on

Fourth

either
Circuit

United States v.

The mandate issued

Petitioner did not petition for a writ of

certiorari, and his conviction became final when the time for
filing such a petition expired.

2

The notice referred to three prior drug convictions and
stated that a conviction on Count Two would result in a
mandatory term of life imprisonment without release, and, if the
quantity were less than 50 grams, but more than 5 grams, a
mandatory minimum term of ten years, and a maximum of life in
prison.
2

Petitioner timely filed this motion.
He

seeks

relief

on

the

assistance of counsel.
June 25, 2009.
II.

basis

that

he

(ECF Nos. 50, 51).
received

ineffective

The Government opposed the motion on

(ECF No. 58).

Petitioner did not reply.

Standard of Review
Title 28 U.S.C. § 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.”

A

pro

se

movant

is

entitled

to

reviewed with appropriate consideration.
574 F.2d 1147, 1151-53 (4th Cir. 1978).
motion,

along

with

the

files

and

have

his

arguments

See Gordon v. Leeke,
But if the § 2255

records

of

the

case,

conclusively shows that he is not entitled to relief, a hearing
on the motion is unnecessary and the claims raised in the motion
may be dismissed summarily.

28 U.S.C. § 2255(b).

III. Analysis
Petitioner

alleges

that

his

trial

“[c]ounsel

was

ineffective in not obtaining a plea offer and in advising [him]
concerning [the] strength of his case.”

(ECF No. 50, at 5).

Specifically, Petitioner alleges that counsel advised him that
his failure to consent to the search of his home while at the
police station would result in suppression of the evidence and
3

that the evidence was not sufficient to obtain a conviction.

In

contrast, Petitioner now says that the evidence was very strong,
that the drugs and gun were found in a closet used solely by
him,3 and that a “[r]ealistic and competent assessment of [the]
case required that a plea be accepted.”

(Id.).

The government responds by asserting that Petitioner and
counsel in fact sought a pre-trial disposition and visited the
United States Attorney’s Office on the day prior to trial.

A

written plea agreement was presented to, but rejected by, both
Petitioner and his attorney.4
government’s

factual

Petitioner did not respond to the

assertions.

The

government

also

argues

that the allegations do not meet the threshold of Strickland v.

3

Although the Petitioner’s girlfriend testified that
Petitioner used the closet in the master bedroom (Trial Tr. 115,
Aug. 30, 2006), there was also testimony from searching officers
that both men’s and women’s clothing were in the master bedroom
(Trial Tr. 143, Aug. 29, 2006) and that a woman’s handbag and
boots were found in the closet (id. at 228-29). Counsel argued
that other people had access to the closet.
(Trial Tr. 176,
Aug. 30, 2006).
4

The proffered plea agreement included a plea to both
counts of the indictment and guideline stipulations resulting in
an offense level of 34 or 35 and a criminal history category of
VI. Although not explicit, the plea apparently would also
include the government’s agreement not to file a notice of
enhanced sentence under 21 U.S.C. § 851.
Thus, instead of a
mandatory life sentence on Count Two, Petitioner would have
faced a mandatory minimum sentence of ten years, and a maximum
of life in prison and guidelines range of either 262-327 months
or 292-365 months.
4

Washington, 466 U.S. 668 (1984), and amount only to after-thefact criticism of strategic advice.
These
dispute

differing

of

fact

negotiations.
the

factual

concerning

assertions

the

obviously

presence

or

create

absence

of

a

plea

The difference is, however, not material under

circumstances.

Regardless

of

which

version

is

correct,

Petitioner cannot show ineffective representation by counsel.
Claims of ineffective assistance of counsel are, of course,
governed
under

by

the

which

performance
standard
petitioner

the
was

of

well-settled
petitioner
deficient

standard
must

when

reasonableness.
must

show

prejudiced the defense.

that

adopted

first

measured
Id.

at

counsel’s

show

in

Strickland,

that

against
687-88.
deficient

counsel’s

an

objective

Second,

the

performance

Id. at 687.

The United States Supreme Court recently reaffirmed that
“the right to the effective assistance of counsel applies to
certain steps before trial.

The Sixth Amendment guarantees a

defendant the right to have counsel present at all critical
stages of the criminal proceedings.”

Missouri v. Frye, 566 U.S.

---, 2012 WL 932020, at *5 (Mar. 21, 2012) (internal quotations
omitted).

In Missouri v. Frye, the issue concerned pre-trial

plea negotiations.

Counsel had received, but did not convey to

his client, plea offers.

The Court held that “as a general

rule, defense counsel has the duty to communicate formal offers
5

from the prosecution to accept a plea on terms and conditions
that may be favorable to the accused.”

Id. at *8.

To show

prejudice
where a plea offer has lapsed or been
rejected because of counsel’s deficient
performance, defendants must demonstrate a
reasonable
probability
they
would
have
accepted the earlier plea offer had they
been
afforded
effective
assistance
of
counsel. Defendants must also demonstrate a
reasonable probability the plea would have
been
entered
without
the
prosecution
canceling it or the trial court refusing to
accept it, if they had the authority to
exercise that discretion under state law.
Id. at *9.
In another case decided the same day, Lafler v. Cooper, 566
U.S. ---, 2012 WL 932019 (Mar. 21, 2012), the Court dealt with a
different situation, where counsel’s concededly erroneous legal
advice led the defendant to reject a plea offer.

The Court held

that
[i]f a plea bargain has been offered, a
defendant
has
the
right
to
effective
assistance of counsel in considering whether
to accept it.
If that right is denied,
prejudice can be shown if loss of the plea
opportunity led to a trial resulting in a
conviction on more serious charges or the
imposition of a more severe sentence.
Id. at *8.

These two cases help to frame the necessary analysis

for Petitioner’s claims.
There are two aspects to the petition — first, the question
of seeking a plea agreement, and second, the asserted misadvice
6

about the suppression issue and the strength of the evidence.
The

issues

will

be

analyzed

under

both

factual

scenarios

presented by the parties: first, as if the facts are as stated
in

the

petition,

i.e.,

that

counsel

did

not

seek

a

plea

agreement, and second, as asserted by the government, i.e., that
a specific plea offer was made directly to the defendant on the
day

before

trial.

As

noted

above,

under

either

version,

Petitioner is not entitled to relief.
To establish the first prong of Strickland, Petitioner must
produce evidence that his counsel’s performance was not “within
the

range

cases.”

of

competence

466 U.S. at 687.

demanded

of

attorneys

in

criminal

There exists a strong presumption

that a counsel’s conduct falls within a wide range of reasonably
professional conduct, and courts must be highly deferential in
scrutinizing counsel’s performance.

See id. at 688-89; Bunch v.

Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991).

Courts must judge

the reasonableness of attorney conduct “as of the time their
actions
fact.”

occurred,

not

the

conduct’s

consequences

after

the

Frye v. Lee, 235 F.3d 897, 906 (4th Cir. 2000).

Petitioner begins by arguing that his trial attorney was
“ineffective in not obtaining a plea offer.”
5).

(ECF No. 50, at

Even if it is true that his counsel did not seek a plea

agreement, his counsel’s failure to seek or obtain a plea offer
was not outside the “range of competence” of criminal defense
7

attorneys.

As an initial matter, “a defendant has no right to

be offered a plea.”

Missouri v. Frye, 2012 WL 932020, at *10

(citing Weatherford v. Bursey, 429 U.S. 545, 561 (1977)); see
also Fields v. Attorney Gen., 956 F.2d 1290, 1297 n.19 (4th Cir.
1992)

(“A

defendant

bargain.”).

has

no

constitutional

right

to

a

plea

In general, a defense counsel does not ordinarily

have a duty to initiate negotiations for a plea bargain.
Beans v. Black, 757 F.2d 933, 936 (8th Cir. 1985).

See

An attorney

must, however, convey formal plea offers from the prosecution to
the defendant.

See Missouri v. Frye, 2012 WL 932020, at *8.

But absent a formal offer from the prosecution, “[a]n attorney’s
decision not to initiate plea bargaining is strategy, and an
attorney is not required to seek plea bargains that an attorney
reasonably believes that the prosecution will reject.”

United

States v. McDonald, No. 3:04-cr-00092-3, 2009 WL 2058527, at *8
(W.D.Va.

July

14,

2009).

Thus,

here,

the

bare

fact

that

Petitioner’s counsel may not have sought a plea offer from the
prosecution does not indicate any professional deficiency by his
counsel.5

5

Nor could Petitioner argue that his counsel was
ineffective for not obtaining a satisfactory plea offer.
See
Mayes v. United States, No. 7:07-cv-00132, 2007 WL 4302829, at
*7 n.9 (W.D.Va. Dec. 6, 2007) (dismissing petitioner’s argument
that counsel was ineffective for failing to renegotiate with the
government for a “more favorable” plea agreement based, in part,
on Weatherford and Beans).
8

The government contends, moreover, that Petitioner was, in
fact, offered a formal, written plea agreement the day before
trial was set to commence and that he personally rejected it.
(See ECF No. 58, at 4).

Petitioner did not file a reply and has

not explicitly contested this assertion.

If this version of the

facts is correct, then Petitioner’s claim that no plea agreement
was sought would be unsubstantiated and, because both Petitioner
and his counsel were present at the conference, there could be
no

deficient

performance

from

failing

to

advise

him

of

the

offer.
Petitioner also contends, however, that his attorney gave
him bad advice concerning the suppression issue and the strength
of the case.

That advice only needs to be assessed as it might

have affected his decision to reject the plea that ultimately
was offered the day before trial.

Any misadvice earlier in the

proceedings would not have been prejudicial in the context of
Petitioner’s claim concerning plea negotiations and Petitioner
has

not

identified

any

other

action,

or

inaction,

that

was

adversely affected.
Petitioner cannot argue that his decision to reject the
plea

offer

erroneous

made
advice

the

day

before

concerning

the

trial

was

affected

suppression

issue.

by

any
The

prosecution’s plea offer, which he received on August 28, 2006,
came three weeks after the suppression motion had been denied on
9

August 7, 2006.

Thus, Petitioner was fully aware of the result

of the motion to suppress when he decided to reject the plea
offer.

He

cannot

now

argue

that

his

counsel’s

erroneous advice on that matter led him astray.
application

of

the

notion

that,

when

allegedly

This is but an

earlier

erroneous

information given by an attorney is corrected by the judge in
court, a defendant cannot show prejudice.

United States v.

Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992).
As

to

his

attorney’s

advice

regarding

the

general

sufficiency of the evidence, the Supreme Court has suggested
that “an erroneous strategic prediction about the outcome of a
trial is not necessarily deficient performance.”
WL 932019, at *12.
cautioned

that

Lafler, 2012

At the same time, however, the Court has

“[t]he

failure

of

an

attorney

to

inform

his

client of the relevant law clearly satisfies the first prong of
the Strickland analysis.”

Hill v. Lockhart, 474 U.S. 52, 62

(1985) (White, J., concurring).

Here, there is simply no hint

that the advice of Petitioner’s attorney concerning the strength
of the evidence involved any misstatement about the law.
trial,

the

defense

strenuously

challenged

the

At

Government’s

witnesses and evidence, and argued at length that the evidence
should

not

persuade

Petitioner’s guilt.

the

jury

beyond

a

reasonable

doubt

of

The trial took two days, the jury began

deliberating just after 4:30 p.m. on the afternoon of the second
10

day, and did not return a verdict until mid-afternoon on the
following day. It cannot be said that the factual challenge to
the Government’s proof fell outside the range of competence of a
reasonable attorney.
attorney
trial.

guessed

At best, Petitioner is arguing that his

incorrectly

about

the

outcome

of

his

jury

Without more, it cannot be said that the performance of

Petitioner’s counsel was deficient under the Sixth Amendment.
Defense attorneys are not expected to be “seers,” but they
must give advice based on an accurate view of the law.

As

explained in Ostrander v. Green, 46 F.3d 347 (4th Cir. 1995),
overruled on other grounds by O’Dell v. Netherland, 95 F.3d 1214
(4th Cir. 1996):
The Strader [v. Garrison, 611 F.2d 61 (4th
Cir. 1979),] court was careful to explain
that there is a difference between a bad
prediction within an accurate description of
the law and gross misinformation about the
law
itself.
If
the
lawyer
simply
underestimates the sentence, there may not
be ineffective assistance. See, e.g., United
States v. Lambey, 974 F.2d 1389, 1394 (4th
Cir. 1992) (en banc), cert. denied, 513 U.S.
1060, 115 S.Ct. 672, 130 L.Ed.2d 605 (1994).
But what if he tells his client that the
statutory maximum is ten years, and it is
actually life? We cannot expect criminal
defense lawyers to be seers, but we must
demand that they at least apprise themselves
of the applicable law and provide their
clients
with
a
reasonably
accurate
description of it.
Id. at 355.

11

Finally,

as

noted

by

the

Supreme

Court

in

Strickland,

because “[i]t is all too tempting for a defendant to secondguess

counsel’s

sentence,”

466

assistance
U.S.

at

after

689,

conviction

“strategic

or

choices

made

adverse
after

thorough investigation of law and facts relevant to plausible
options

are

virtually

unchallengeable,”

id.

at

690.

Here,

Petitioner merely laments in hindsight the decision to challenge
the government’s evidence at trial.
Because

Petitioner

has

not

met

the

first

prong

of

the

Strickland test with regard to the decision to reject the plea
offer and challenge the government’s evidence at trial, it is
not necessary to address whether he has shown prejudice.
IV.

Conclusion
For the foregoing reasons, Petitioner’s motion to vacate,

set aside, or correct his sentence pursuant to 28 U.S.C. § 2255
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
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
12

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.”
F.3d

676,

684

(4th

Cir.

2001)

(quotation

Rose v. Lee, 252
marks

omitted).

Petitioner does not satisfy the above standard.
A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

13