Gray v. United States of America
Filing
1
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 3/2/2012. (rss, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JOSEPHINE VIRGINIA GRAY
:
v.
:
Civil Action No. DKC 09-0532
Criminal Case No. DKC 01-0566
:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution is the motion of
Petitioner
Josephine
Virginia
Gray
to
vacate,
correct her sentence under 28 U.S.C. § 2255.
set
aside,
or
(ECF No. 124).
The issues are fully briefed, and the court now rules pursuant
to Local Rule 105.6, no hearing being deemed necessary.
For the
reasons that follow, the motion will be denied.
I.
Background
On November 7, 2001, Gray was charged by an eight-count
indictment
with
mail
and
wire
fraud.
According
to
the
indictment, Gray intentionally caused the deaths of Robert Gray,
her second husband, and Clarence Goode, her companion.
She then
concealed her role in the murders from the insurance companies
that
had
insured
the
victims
and
submitted
claims
to
those
companies to recover proceeds from the victims’ life insurance
policies.
Following a three-week jury trial, Gray was convicted
on all counts.
On December 2, 2002, Gray was sentenced to forty years in
prison.
The
court
calculated
Gray’s
sentence
using
two
alternative methods, each of which yielded a base offense level
of forty-three.
Under the first method, the court applied the
cross-reference provision of the fraud guideline to the firstdegree
murder
guideline
murders were premeditated.
after
finding
that
the
underlying
Under the second method, the court
began with the base offense level for mail fraud and applied
enhancements because the offense involved more than one victim
as well as use of a firearm.
The court then departed upward
pursuant to U.S.S.G. § 5K2.1 upon concluding that Gray’s schemes
to defraud involved two premeditated murders.
Gray appealed her conviction and sentence to the United
States Court of Appeals for the Fourth Circuit.
The Fourth
Circuit affirmed her conviction, but remanded for resentencing
in light of United States v. Booker, 543 U.S. 220 (2005).
In so
doing,
given
the
Fourth
Circuit
noted
that
Gray’s
sentence,
under guidelines that were mandatory at the time of sentencing,
had been “based upon a factual finding – that the murders of
Robert Gray and Good were premeditated – that the jury was not
required to make.”
United States v. Gray, 405 F.3d 227, 243 (4th
Cir. 2005), cert. denied, 546 U.S. 912 (2005).
Gray’s resentencing was held on August 7, 2006.
the
proceeding,
defense
counsel
2
submitted
an
Prior to
extensive
memorandum to the court, setting forth multiple reasons why Gray
should be resentenced to less than forty years of imprisonment.
In the memorandum, Gray’s counsel first contended that a crossreference from the fraud guideline to the first-degree murder
guideline was inappropriate because the indictment setting forth
the count of conviction alleged intentional murder, rather than
premeditated murder.
The memorandum also argued against upward
departure from the fraud guideline, contending that, inter alia,
the circumstances surrounding the murders were too unclear to
demonstrate
first-degree
murder.
Finally,
defense
counsel
dedicated nearly half of the memorandum to various circumstances
demonstrating
that
Gray’s
difficult
childhood,
strong,
moral
character, age, and health problems did not warrant an upward
departure.
The government opposed these arguments, contending
that Gray’s original forty-year sentence remained appropriate
even following Booker.
At
resentencing,
Gray’s
counsel
presented
each
of
the
arguments set forth in her memorandum to the court, and the
government opposed them.1
After listening to argument from both
sides, the court “reaffirm[ed] all of the guideline findings
that
[it]
made
at
the
time
1
of
the
initial
sentencing.”
Pursuant
to
Federal
Rule
of
Criminal
Procedure
43(c)(1)(B), Gray waived her right to attend the resentencing.
3
(Resentencing Tr. 39, Aug. 7, 2006).
The court again concluded
that
guideline
cross-reference
from
the
fraud
to
the
first-
degree murder guideline was appropriate because the facts set
forth in the indictment alleged premeditation in the murders of
Robert Gray and Goode.
Alternatively, the court concluded that
an upward variance from the guidelines was appropriate given the
circumstances
murders.2
surrounding
the
insurance
fraud
and
underlying
Under either method, the court held that a forty-year
sentence was appropriate and resentenced Gray accordingly.
Gray again appealed to the Fourth Circuit.
three arguments on appeal:
the
cross-reference
first-degree
establish
murder
(1) that the court erred in applying
provision
of
guideline
because
premeditated
She raised
murder;
the
(2)
fraud
the
that
guideline
indictment
her
Fifth
to
the
did
not
Amendment
right to due process was violated because the court’s factfinding was based on a preponderance of the evidence standard;
and (3) that the court unreasonably varied from the advisory
guideline range.
The Fourth Circuit affirmed Gray’s sentence,
holding
court’s
that
the
cross-reference
to
the
first-degree
murder guideline was appropriate because “the language of the
indictment
clearly
articulate[d]
2
premeditated,
first-degree
In so doing, the court declined to accept the argument of
Gray’s counsel that her life circumstances warranted a lesser
sentence.
4
United States v. Gray, 253 F.App’x 321, at *1 (4th Cir.
murder.”
2007).
The Fourth Circuit also held that the court had not
violated Gray’s due process rights “by adopting factual findings
based on a preponderance of the evidence standard.”
Id. at *2
(citing
(4th
United
2005)).
States
v.
Morris,
429
F.3d
65,
72
Cir.
Because it affirmed Gray’s sentence on these grounds,
the Fourth Circuit expressly declined to address her argument
that the court’s upward variance – an alternative ground for
imposing the sentence – was unreasonable.
Gray subsequently
filed a petition for writ of certiorari in the Supreme Court of
the United States, but it was denied on March 17, 2008.
Gray v.
United States, 552 U.S. 1270 (2008).
On March 4, 2009, Gray timely filed this motion to vacate,
set aside, or correct her sentence pursuant to 28 U.S.C. § 2255.
The government opposed her motion on April 29, 2009.
Gray has
not filed a reply.
II.
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
of
course
entitled
arguments reviewed with appropriate consideration.
5
to
have
her
See Gordon
v. Leeke, 574 F.2d 1147, 1151–53 (4th Cir. 1978).
2255
motion,
along
with
the
files
and
But if the §
records
of
the
case,
conclusively shows that she 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
Gray seeks relief on the following four grounds:
(1) she
received ineffective assistance of counsel with regard to her
resentencing; (2) the court’s fact-finding “must be governed by
a standard . . . higher than a preponderance of the evidence” to
satisfy due process; (3) her sentence is “[i]llegal because the
sentencing
guidelines
were
unconstitutional”;
and
(4)
she
“[o]bjected to an upward variance from the applicable guideline
range.”
(ECF No. 124, at 5-6).
Each of these arguments will be
addressed in turn.
A.
Ineffective Assistance of Counsel
First,
Gray
contends
that
she
received
ineffective
assistance of counsel with regard to her resentencing.
Such
claims are governed by the well-settled standard adopted by the
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).
Under the Strickland standard, the petitioner must show both
that her attorney’s performance fell below an objective standard
of reasonableness and that she suffered actual prejudice.
Strickland, 466 U.S. at 687.
See
To demonstrate actual prejudice,
6
she must show that there is a “reasonable probability that, but
for
counsel’s
unprofessional
errors,
proceeding would have been different.”
the
result
of
the
Id. at 694.
In applying Strickland, there exists a strong presumption
that 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,
Frye
not
v.
the
Lee,
235
conduct’s
F.3d
consequences
897,
906
(4th
after
Cir.
the
2000).
Furthermore, a determination need not be made concerning the
attorney’s performance if it is clear that no prejudice would
have
resulted
deficient.
Here,
even
had
the
attorney’s
performance
been
See Strickland, 466 U.S. at 697.
Gray’s
ineffective
interpreted in two ways.
assistance
claim
could
be
At one point in her motion, Gray
asserts that “counsel has not fought to have [her] resentenced
under
[the]
new
Booker
guidelines,”
(ECF
No.
124,
at
6),
a
contention that likely stems from the fact Gray received the
same sentence at her original sentencing and at resentencing.
To
the
extent
Gray
intends
to
argue
that
her
counsel’s
performance was deficient because she was not resentenced under
the advisory guidelines, this argument is meritless.
7
The Fourth Circuit has explained the impact of the Supreme
Court’s
decision
sentencing
in
guidelines
Booker,
which
violated
the
declared
Sixth
that
mandatory
Amendment
of
the
Constitution, as follows:
Booker does not in the end move any decision
from judge to jury, or change the burden of
persuasion.
The remedial portion of Booker
held that decisions about sentencing factors
will continue to be made by judges, on the
preponderance of the evidence, an approach
that comports with the sixth amendment so
long as the guideline system has some
flexibility in application. As a practical
matter, then, petitioners’ sentences would
be determined in the same way if they were
sentenced today; the only change would be
the degree of flexibility judges would enjoy
in applying the guideline system.
Morris, 429 F.3d at 72 (quoting McReynolds v. United States, 397
F.3d 479, 481 (7th Cir. 2005)).
Accordingly, “[i]n the wake of
Booker, . . . the discretion of a sentencing court is no longer
bound by the range prescribed by the guidelines.”
v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).
United States
The sentencing
court, however, must still consult the guidelines and consider
them when determining an appropriate sentence.
Id. (quoting
Booker, 540 U.S. at 264).
In the present case, although Gray received a forty-year
term
of
imprisonment
at
both
sentencing
proceedings,
her
resentencing took place more than eighteen months after Booker
was
decided,
and
the
court
expressly
8
conducted
the
second
proceeding on remand from the Fourth Circuit to resentence in
light of Booker.
(See Resentencing Tr. 7, Aug. 7, 2006) (“The
mandate is for [the court] to hold a sentencing hearing in light
of Booker.
The guidelines are advisory.”); (id. at 38) (the
court discussing remands in light of Booker’s conclusion that
the
sentencing
court
explained
guidelines
during
are
the
advisory).
proceeding
Additionally,
that,
although
the
the
guidelines were only advisory in light of Booker, they remained
a relevant “factor” to consider when determining an appropriate
sentence.
(Id.
at
7).
Following
argument
from
both
sides
regarding an appropriate sentence, the court then proceeded to
“adopt and . . . reaffirm all of the guideline findings that
[it] had made at the time of the initial sentencing.”
39).
(Id. at
Thus, Gray was resentenced in accordance with Booker, and
the fact that the court imposed the same term of imprisonment is
of no moment.
See United States v. Anthony, 202 F.App’x 617,
619 (4th Cir. 2006) (rejecting the defendants’ contention that
the district court had “erred by applying a ‘de facto mandatory
Guidelines standard’ in resentencing them to the same sentence”
where “the district judge clearly and accurately enunciated this
court’s directive [to resentence in accordance with Booker,] . .
. considered the arguments of counsel, and decided that its
original findings did not need to be altered”), cert. denied,
551
U.S.
1168
(2007);
see
also
9
Hughes,
401
F.3d
at
546
(explaining that, even though the sentencing guidelines were no
longer
mandatory,
district
courts
must
nonetheless
consider
those guidelines, along with other “factors,” in determining a
defendant’s sentence).
To the extent Gray intends to argue that her counsel was
ineffective in not doing enough to obtain a lighter sentence, as
suggested by the assertion that “counsel should have pursued
[resentencing]
further”
due
to
questions
regarding
the
“legitimacy of [the original] sentencing,” this argument fails
on two alternative grounds.
provides
only
conclusory
ineffectiveness,
(ECF No. 124, at 6).
allegations
contrary
to
regarding
Strickland’s
First, Gray
her
counsel’s
mandate
that
a
petitioner “identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional
judgment.”
similarly
Strickland,
sparse
466
allegations
U.S.
in
at
habeas
690.
corpus
Courts
facing
petitions
have
concluded that a claim for ineffective assistance of counsel may
fail on that basis alone.
1125,
1136
(4th
Cir.
See, e.g., Nickerson v. Lee, 971 F.2d
1992)
(holding
that
“[u]nsupported,
conclusory allegations” of ineffective assistance are subject to
dismissal), abrogated on other grounds by Gray v. Netherland,
518 U.S. 152 (1996); Wagner v. United States, 377 F.Supp.2d 505,
509
(D.S.C.
2005)
(explaining
that
“[m]ere
conclusory
allegations in support of a claim of ineffective assistance of
10
counsel
are
insufficient
to
raise
a
constitutional
issue”),
appeal dismissed, 146 F.App’x 701 (4th Cir. 2005); cf. Anjum, 961
F.Supp.
at
888
(rejecting
the
petitioner’s
ineffective
assistance claim regarding proper translation of key documents
where he “ma[de] no attempt to specify the alleged inaccuracies
[in the translation]”).
Second, the record does not reveal any act or omission of
Gray’s
counsel
to
support
the
contention
that
counsel’s
performance was deficient with regard to resentencing.
Gray’s
counsel submitted a comprehensive memorandum to the court prior
to resentencing that presented numerous reasons why a sentence
of
136
to
168
appropriate.
At
months
the
–
rather
hearing
than
itself,
forty
counsel
years
gave
–
was
extensive
argument on these points, focusing particularly on why the court
should
not
apply
the
cross-reference
provision
of
the
fraud
guideline to the first-degree murder guideline and why Gray’s
childhood,
sentence.
character,
age,
and
health
warranted
a
(See Resentencing Tr. 5-8, 15-34, Aug. 7, 2006).
lower
The
court rejected counsel’s arguments in the end, but that fact
alone hardly renders counsel’s performance with regard to the
resentencing
deficient.
See
Brown
v.
United
States,
Nos.
3:08CV524-W-02, 3:01CR185-V, 2008 WL 5110748, at *5 (W.D.N.C.
Dec.
3,
assistance
2008)
of
(denying
a
§
counsel
based
11
2255
on
motion
for
ineffective
purportedly
inadequate
preparation for resentencing where “the record reflect[ed] that
counsel
[had]
[certain
F.App’x
made
an
sentencing]
494
(4th
extensive
argument
concerning
enhancements”),
Cir.
appeal
2010);
v.
Simpson
.
dismissed,
United
States,
.
.
361
Nos.
3:08CV197-03-MU, 3:01CR189-4, 2008 WL 2001811, at *2 (W.D.N.C.
May 7, 2008) (rejecting a petitioner’s claim that counsel failed
to
argue
where
effectively
counsel
against
filed
“at
improper
least
guideline
twelve
enhancements
objections
to
the
presentence report, filed two comprehensive sentencing memoranda
and a motion for downward departure and filed two appeals . . .
contesting the enhancements Petitioner received at sentencing”),
appeal
dismissed,
300
F.App’x
251
(4th
Cir.
2008).3
Gray’s
ineffective assistance claim must, therefore, fail.
B.
Gray
Due Process Violation
also
contends
that
her
due
process
rights
were
violated because the court found facts at her resentencing under
a
preponderance
of
the
evidence
standard.
This
argument,
however, was considered and rejected on Gray’s direct appeal to
the Fourth Circuit in 2007, see Gray, 253 F.App’x 321, at *2
(citing Morris, 429 F.3d at 72), and no intervening change in
the law has since occurred, see United States v. Grubbs, 585
3
Gray’s counsel noted an appeal from her resentencing two
days after the conclusion of that proceeding.
12
F.3d 793, 802 (4th Cir. 2009) (concluding that “the due process
clause does not require the district court to find uncharged
conduct by a heightened standard of proof before using it as a
basis for determining a defendant’s sentence”), cert. denied,
130 S.Ct. 1923 (2010).
Accordingly, Gray may not relitigate
this issue through a § 2255 motion.
See United States v. Roane,
378 F.3d 382, 396 n.7 (4th Cir. 2004) (concluding that § 2255
petitioners could not “relitigate issues previously rejected on
direct appeal” where they had “not pointed to any change in the
law that warrant[ed] . . . reconsideration” (citing Boeckenhaupt
v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976))), cert.
denied, 546 U.S. 810 (2005).
C.
Illegal Sentence Due to Unconstitutional Sentencing
Guidelines
Gray
further
argues
that
her
forty-year
term
of
imprisonment is “illegal because the sentencing guidelines were
unconstitutional.”
(ECF No. 124, at 5).
In support of this
argument, she states only that the “4th Circuit Court ordered
vac[atur] and resentencing.
Judge again denied.”
description
that
again
suggests
Gray
believes
(Id.).
she
was
This
not
resentenced in accordance with Booker because she received the
same sentence at her original sentencing and at resentencing.4
4
The government reads this argument as another attempt by
Gray to assert that her sentence was unreasonable because the
13
As previously explained, however, such a contention is wholly
without merit, and this claim cannot go forward.
D.
Objection to Upward Variance on Resentencing
Finally, Gray challenges the court’s “upward variance from
the applicable guideline range” on resentencing.
(ECF No. 124,
at 5).
The government’s brief suggests that objection on this
ground
is
procedurally
“articulated,
and
.
.
.
barred
because
rejected,
[Gray’s] second direct appeal.”
by
this
the
argument
Fourth
Circuit
(ECF No. 126, at 4).
suggestion, however, is incorrect.
was
in
That
Although Gray did present
the upward variance argument as a ground for appeal, the Fourth
Circuit expressly declined to address the issue because it found
Gray’s sentence reasonable based on the court’s application of
the
cross-reference
provision
of
first-degree murder guideline.
the
fraud
guideline
to
the
Because the Fourth Circuit did
not “fully consider[]” the reasonableness of the court’s upward
variance
when
considering
the
legality
of
Gray’s
sentence,
Boeckenhaupt, 537 F.2d at 1183, Gray is not barred from raising
that objection here.
court applied the cross-reference provision of the fraud
guideline to the first-degree murder guideline.
To the extent
Gray intends to make such an argument, she is procedurally
barred from doing so because the Fourth Circuit evaluated and
rejected this contention on direct appeal.
See Gray, 253
F.App’x 321, at *1-2; Roane, 378 F.3d at 396 n.7.
14
In the end, however, the merits of this argument need not
be
addressed,
even
procedurally barred.
though
the
argument
is
not
itself
Indeed, the Fourth Circuit’s reasoning on
direct appeal renders the outcome of this argument irrelevant.
That is, because the Fourth Circuit upheld Gray’s sentence on a
wholly independent ground - by cross-reference to the firstdegree murder guideline, disposition of the present issue has no
bearing on the case.
Gray’s sentence would remain reasonable
and, therefore, intact, even if the court now concluded that the
alternative
upward
variance
was
itself
unreasonable.
Accordingly, Gray’s attempt to attack her sentence by objecting
to the upward variance must fail.
IV.
Conclusion
For the foregoing reasons, Gray’s motion to vacate, set
aside, or correct her 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
15
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).
Upon its review of the record, the court finds that Gray does
not satisfy the above standard.
A separate Order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
16
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