Kelly v. United States Of America

Filing 1

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 3/14/2013. (kns, Deputy Clerk)(c/m 3/14/13)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MAURICE WOMACK KELLY
:
v.

:

Civil Action No. DKC 10-381
Criminal Case No. DKC 06-0067

:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case is
a

motion

by

Petitioner

Maurice

aside, or correct his sentence.

Womack

Kelly

to

(ECF No. 30).

fully briefed and the court now rules.

vacate,

set

The issues are

For the reasons that

follow, the motion will be denied.
I.

Background
On

executed
Maryland.

September
a

search

24,

2001,

warrant

the
on

a

Postal
home

Inspection
in

Service

Capitol

Heights,

Petitioner, Maurice Womack Kelly, was asleep in a

bed, and there were two guns within Petitioner’s reach.

At the

time of the search warrant, he had previously been convicted of
at least three felony offenses.

Petitioner was charged with

being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1).

On January 5, 2009, he pled guilty pursuant

to

agreement.

a

written

plea

Because

of

his

prior

felony

convictions, Petitioner was facing a mandatory minimum sentence

of fifteen years incarceration under 18 U.S.C. § 924(e).1

The

Government recommended a two-level reduction in the application
of

the

federal

sentencing

guidelines,

because

Petitioner

provided information for and cooperated with a number of ongoing
criminal investigations.

Taking this reduction into account,

the Government argued that the appropriate sentence range for
Petitioner

would

be

between

135

Petitioner

should

be

sentenced

and

to

144

168

months,

months.

and

that

Petitioner’s

attorney, Clarence Powell, argued that the starting point for
the

sentence,

should

begin

in
at

criminal history.

terms
a

of

lower

the

sentencing

combination

of

guidelines
offense

level

and

Thus, Mr. Powell argued that the proper range

for Defendant’s sentence would be 121 to 151 months.

1

range,

Mr. Powell

This statute provides:
In the case of a person who violates section
922 (g) of this title and has three previous
convictions by any court referred to in
section 922 (g)(1) of this title for a
violent felony or a serious drug offense, or
both, committed on occasions different from
one another, such person shall be fined
under this title and imprisoned not less
than fifteen years, and, notwithstanding any
other provision of law, the court shall not
suspend
the
sentence
of,
or
grant
a
probationary sentence to, such person with
respect to the conviction under section 922
(g).

18 U.S.C. § 924(e)(1).
2

also argued that the sentence could be further reduced on a
number of other bases.

Petitioner was sentenced on April 27,

2009, to 121 months imprisonment, which was to be followed by
three years of supervised release, and ordered to pay a special
assessment of $100.
II.

Analysis
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

to

have

his

arguments reviewed with appropriate consideration.

See Gordon

v. Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978).

But if the

Section 2255 motion, along with the files and 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).

Petitioner contends that he received ineffective assistance
of counsel.

Such claims are governed by the two-step standard

adopted by the Supreme Court in Strickland v. Washington, 466
U.S. 668 (1984).

The Fourth Circuit explained this test in

United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010):
3

The defendant bears the burden of proof as
to both prongs of the standard. First, the
defendant
must
show
that
counsel’s
representation
fell
below
an
objective
standard of reasonableness as measured by
prevailing
professional
norms.
Courts
should be deferential in this inquiry, and
have a strong presumption that counsel’s
conduct falls within the wide range of
reasonable professional assistance.
The
defendant
must
therefore
overcome
the
presumption that the representation might be
considered sound trial strategy.
Second, the defendant must demonstrate that
counsel’s inadequate performance prejudiced
him.
Thus, the defendant must show a
reasonable
probability
that,
but
for
counsel’s unprofessional errors, the result
of the proceeding would have been different.
A
reasonable
probability,
in
turn,
is
defined as a probability sufficient to
undermine confidence in the outcome.
(citations and quotation marks omitted).
Section
guilty

2255
plea,

petition
a

challenging

defendant

a

generally

In the context of a

conviction
establishes

following
prejudice

a
by

demonstrating “a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985);

accord United States v. Mooney, 497 F.3d 397, 401 (4th

Cir.

2007).
The motion recites a single ground to support adjusting
Petitioner’s sentence, ineffective assistance of counsel.
support,

Petitioner

conclusorily

recites
4

that

his

In

attorney

failed to present legal and factual argument during sentencing
that could have been favorable to the defendant.

Without any

specifics, the claim must be rejected.
As pointed out by the Government in its response to the
petition, Petitioner was subject to an enhanced sentence due to
his prior convictions.
government,
sentence.

he

was

He knew that, absent a motion by the

subject

to

a

15

year

mandatory

minimum

At sentencing, Petitioner’s attorney persuaded the

Government to make a motion that reduced the guideline range to
121 to 151 months, and he received the lowest sentence possible
under the circumstances.
As to the first Strickland prong, at minimum, Mr. Powell’s
assistance resulted in a further twenty-three month reduction in
Petitioner’s sentence, and he made numerous arguments to have
the sentence reduced further.

Petitioner does not offer any

detail regarding what additional arguments counsel could have
made on his behalf.

Accordingly, Plaintiff does not establish

that

performance

Mr.

Powell’s

was

objectively

defective.

Moreover, as to the second Strickland prong, Petitioner merely
offers that these vague additional arguments “could have been
favorable to defendant.”
short

of

establishing

(ECF No. 30, at 5).
prejudice.

This falls well

Petitioner’s

argument

of

ineffective assistance of counsel fails on both prongs of the
5

Strickland test.
reasonable

and

Mr. Powell’s representation of Petitioner was
did

not

prejudice

Petitioner

in

any

way.

Accordingly, Mr. Kelley’s petition must be denied.
III. Conclusion
For the foregoing reasons, the 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
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 prisoner satisfies this standard by demonstrating that
reasonable

jurists

would

find

the

court’s

constitutional claims debatable or wrong.

assessment

of

the

Slack v. McDaniel,

529 U.S. 473, 484 (2000); see also Miller-El v. Cockrell, 537
U.S. 322, 336-38 (2003).

6

Upon its review of the record, the court finds that Mr.
Kelley does not satisfy the above standard.

A separate Order

will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge

7