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):
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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).
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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
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