Brown, Jr. v. United States of America

Filing 2

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 8/27/2013. (kns, Deputy Clerk)(c/m 8/27/13)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JOSEPH FRANKLIN BROWN, JR.
:
v.

:

Civil Action No. DKC 10-2569
Criminal Case No. DKC 08-0529

:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

is

a

motion

filed by Petitioner Joseph Franklin Brown, Jr., to vacate, set
aside, or correct sentence.

(ECF No. 122).

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, the motion will be granted in part and denied in part.
I.

Background
Petitioner was charged by an indictment filed November 17,

2008, with conspiracy to commit bank robbery, in violation of 18
U.S.C. § 371 (count one); armed bank robbery, in violation of 18
U.S.C. §§ 2113(a) and (d) (count two); using, carrying, and
brandishing

a

firearm

during

and

in

relation

to

a

crime

of

violence, in violation of 18 U.S.C. § 924(c) (count three);
possession of a firearm after a felony conviction, in violation
of

18

U.S.C.

§

922(g)(1)

(counts

four

and

seven);

evidence

tampering, in violation of 18 U.S.C. § 1512(c); (count eight);

and interstate transportation of stolen property, in violation
of 18 U.S.C. § 2314 (counts nine and ten).

He was appointed

counsel pursuant to the Criminal Justice Act.
A.

Plea Agreement

On April 8, 2009, Petitioner entered into an agreement with
the government to plead guilty to counts one through four of the
indictment.

The parties stipulated that the adjusted offense

level applicable to counts one and two was 32 and, as to count
three,

that

“a

mandatory

minimum

sentence

of

seven

years

imprisonment . . . [would] run consecutive to any other term[.]”
(ECF No. 68 ¶ 6.b).
disagreed

regarding

With respect to count four, the parties
application

of

a

sentencing

under the Armed Career Criminal Act (“ACCA”).

enhancement
They agreed,

however, that if Petitioner were deemed to be an armed career
criminal at the sentencing hearing, “the offense level is 33,”
and that if he were not “the base offense level is 20” and that
“a

4-level

would apply.

enhancement

pursuant

(Id. at ¶ 6.c).

to

[U.S.S.G.]

§

2K2.1(b)(6)”

“Because the counts of conviction

group together,” the agreement summarized, “the adjusted offense
level for Counts One, Two, and Four is 33 if the [Petitioner] is
an [a]rmed [c]areer [c]riminal, and 32 otherwise.”
6.d).
level

(Id. at ¶

Additionally, the government agreed to move for a onereduction

“in

recognition

of

the

[Petitioner’s]

timely

notification of his intention to plead guilty” and not to oppose
2

a defense request for two-level reduction based on acceptance of
responsibility.

(Id.

at

¶

6.e).

Petitioner

further

acknowledged his understanding that there was no agreement as to
the applicable criminal history category, and that “his criminal
history could alter his offense level if he is a career offender
or if the instant offense was part of a pattern of criminal
conduct
income.”

from

which

he

derived

a

substantial

portion

of

his

(Id. at ¶ 7).

Notably,

for

present

purposes,

the

agreement

included

limited waiver of the right to appeal:
The
[Petitioner]
and
[the
government]
knowingly and expressly waive all rights
conferred by 18 U.S.C. § 3742 to appeal
whatever sentence is imposed, including any
fine, term of supervised release, or order
of restitution and any issues that relate to
the establishment of the advisory guidelines
range, as follows: with respect to Counts
One, Two, and Four, the [Petitioner] waives
any right to appeal from any sentence within
or below the adjusted base offense level of
29, and [the government] waives any right to
appeal from any sentence within or above the
adjusted base offense level of 30.
With
respect to Count Three, both parties waive
any right to appeal from imposition of the
mandatory
minimum
seven-year
consecutive
sentence.
Nothing in this agreement shall
be
construed
to
prevent
either
the
[Petitioner]
or
[the
government]
from
invoking the provisions of Federal Rule of
Criminal Procedure 35(a), and appealing from
any decision thereunder, should a sentence
be imposed that is illegal or that exceeds
the statutory minimum allowed under the law
or
that
is
less
than
any
applicable
statutory mandatory minimum provision.
3

a

(Id. at ¶ 11).
Attached to the agreement was a stipulation of fact in
which

Petitioner

acknowledged

that,

from

1991

to

2000,

he

incurred five separate convictions in Maryland state courts for
offenses punishable by a term of imprisonment in excess of one
year.

He further acknowledged that, in the summer of 2008, he

possessed

multiple

firearms

despite

the

fact

that

he

was

prohibited from doing so due to his prior felony convictions.
During the same time period, Petitioner devised a plan, along
with co-defendants Quinita Ennis and William Johnson, to commit
the armed robbery of a PNC Bank branch located in California,
Maryland,

the

Following

a

deposits

period

of

of

which

surveillance

were
of

federally
a

bank

insured.

manager

to

determine the location of her residence and details of her daily
schedule, the plan was executed on September 24, 2008.

On that

date, Ennis drove Petitioner and Johnson, who were masked and
armed with a rifle owned by Petitioner, to the branch manager’s
home.

The two men kidnapped the manager and her two minor

children and forced the manager to drive them to the bank in her
vehicle.

At one point along the route, Petitioner exited the

manager’s vehicle and was picked up by Ennis, who was trailing
in her car.

Upon arrival at the bank, Johnson held one of the

children hostage and demanded that the manager and other child

4

enter the bank and return with money.

The manager obtained

approximately $169,900 from the bank and returned to her vehicle
alone,

leaving

another

bank

the

child

employee.
where

that

accompanied

Johnson
she

forced

and

her

the

her
to

inside
drive

remaining

with
to

child

an

elementary

school,

were

released.

Johnson then abandoned the manager’s vehicle in a

nearby parking lot and was picked up by Petitioner and Ennis.
Later that evening, Petitioner, Ennis, and Johnson, accompanied
by a third man, drove to Atlantic City, New Jersey, for purposes
of

laundering

the

stolen

currency.

Thereafter,

Petitioner

buried the rifle, along with approximately $84,000 in cash, in
his backyard and attempted to burn the clothing and apparel worn
on the date of the offenses.
made

voluntary

statements

Following his arrest, Petitioner
to

law

enforcement

officers,

acknowledging his role in planning and executing the armed bank
robbery.
Petitioner

evidenced

his

agreement

to

these

signing the factual stipulation on April 8, 2009.
date,

both

he

and

his

counsel

separately

facts

by

On the same

signed

the

plea

agreement, attesting that Petitioner had reviewed the document
with counsel, that he understood and agreed to its content, and
that he was “completely satisfied with the representation of
[his] attorney.”

(ECF No. 68, at 10).

5

B.

Rearraignment

At his rearraignment on May 13, 2009, Petitioner was placed
under oath and expressed his desire to plead guilty to counts
one through four.

He acknowledged his understanding of the

charges to which he wished to plead guilty; the litany of rights
he was required to waive as a result of that plea; and the
maximum penalties provided by law for each offense.

As to count

four, the court explained:
The maximum possible penalty provided by law
for that offense depends on whether you are
considered to be an armed career criminal
under 924(e). If you are, the maximum would
be life in prison and there would be a 15
year mandatory minimum sentence . . . and an
additional fine of . . . up to $250,000. If
you are not an armed career criminal, then
the maximum sentence would be imprisonment
for ten years followed by supervised release
of up to three years.
(ECF No. 136, at 8).

Petitioner confirmed his understanding of

the

applicable

maximum

penalty

to

each

count.

He

further

acknowledged that the court was not bound by the terms of the
plea agreement and that, if his plea were accepted, he would not
be permitted to withdraw it regardless of any determination made
at sentencing.

The court then reviewed the terms of the plea

agreement; the prosecutor read aloud the stipulation of facts;
and, after clarifying one point, Petitioner “agree[d] that all

6

of th[o]se facts are true[.]”

(Id. at 22).1

He further agreed

that he was “in fact guilty of each of the offenses in Counts
One, Two, Three[,] and Four of the Indictment[.]”
While

confirming

Petitioner’s

(Id.).

understanding

of

the

guideline stipulations contained in the plea agreement and that
there was no agreement regarding the applicable criminal history
category, the court advised that a career criminal designation
could affect the applicable guidelines.

The following colloquy

ensued:
[DEFENSE
COUNSEL]:
I
think
it’s
accurate to say the parties have looked at
this closely and have determined [that
Petitioner] is not a career offender.
THE COURT: That’s what you both agree
or anticipate at this point, but what’s
important, Mr. Brown, is that I can’t tell
you right now what I’ll find, because I
don’t have all of the information that I
will need.
And it’s going to be up to me
ultimately to decide what all of these
factors are, what the guidelines are, what
the sentencing range turns out to be.
Do
you understand that?
[PETITIONER]: Yes, ma’am.

1

The clarification made by Petitioner’s counsel, and agreed
to by the government, was that it was Johnson, not Petitioner,
who possessed and brandished Petitioner’s rifle at all times
during the course of the robbery.
Nevertheless, Petitioner’s
counsel “acknowledge[d] that Mr. Brown aided and abetted Mr.
Johnson’s possession and brandishing the weapon on that date”
and that “it was possessed . . . by Mr. Brown during the
conspiracy leading up to the date of the robbery.”
(ECF No.
136, at 21).
7

THE COURT: I know the attorneys do the
best job they can, but they can’t guarantee
anything, okay?
Now, the guidelines calculation, the
parties agree that only those matters that
are set forth in this agreement should be
considered.
That is, there are no other
offense characteristics, guideline factors
or
any
potential
departures
or
other
adjustments that are going to be raised or
are in dispute. That means to me that both
sides are giving up any right they might
otherwise have to have me use other factors
or other information in determining what the
guidelines are. Do you understand that?
[PETITIONER]: Yes, ma’am. . . .
[THE COURT]: The government is going to
recommend a sentence within the guidelines
range once I decide what that is. Whatever
anybody suggest[s] as a recommendation is
only a recommendation.
It’s up to me to
decide what sentence to impose and it can be
anything from, if there’s an applicable
mandatory minimum up to life in prison in
this case. Do you understand that?
[PETITIONER}: Yes, ma’am.
(Id. at 25-27).
The court next confirmed Petitioner’s understanding of the
appeal waiver:
THE COURT: In addition to the rights
that you give up by pleading guilty, both
you and the government are giving up some of
your rights to appeal the sentence in this
case.
Specifically . . . with regard to
Counts One, Two and Four, if I sentence you
at a level 29 on the advisory guidelines
scale or give you less time, you’re giving
up your right to appeal that sentence.
On
the other hand, if I sentence you at a level
8

30 or more, the government is giving up its
right to appeal.
I guess that means it’s the armed
career criminal determination that each side
is reserving the right to contest on appeal?
[THE GOVERNMENT]: That’s correct.
THE COURT: Okay.
With regard to Count
Three, both sides are giving up their right
to appeal if I impose the mandatory minimum
seven year sentence.
Each party will have
the right under Rule 35 to complain if they
think I’ve imposed an illegal sentence.
That’s going to be difficult, I think, in
your case because the maximum, I think, is
life on some of these charges, but the
government will be able to complain if they
think I have failed to impose a mandatory
minimum sentence in this case.
Do you
understand that?
[PETITIONER]: Yes, I do.
(Id. at 27-28).
Petitioner acknowledged his understanding of the property
he would be required to forfeit and that he would likely be
required

to

make

restitution.

He

agreed

that

all

of

the

provisions contained in the plea agreement had been discussed;
that, aside from the written agreement, no promises had been
made to induce his plea; and that he had not been threatened in
any

way.

Petitioner

further

asserted

that

he

met

with

his

counsel to discuss the guilty plea on numerous occasions; that
counsel

“answered

all

of

[his]

questions”;

“satisfied with the help [counsel] provided.”

9

and

that

he

was

(Id. at 31-32).

Having

been

Petitioner

fully

advised

confirmed

that

of
it

the
was

consequences
still

his

of

desire

his

plea,

to

plead

guilty and the court accepted the plea, finding that it was
entered into knowingly, voluntarily, and intelligently, and that
there was an adequate factual basis.
C.

Sentencing

No transcript of the December 22, 2009, sentencing hearing
has been prepared, but the court has reviewed notes and listened
to a recording.

Petitioner was not found to be an armed career

criminal;

as

thus,

contemplated

by

the

plea

agreement,

offense level for counts one, two, and four was 32.
three-level

reduction

for

acceptance

of

the

After a

responsibility

and

timely notification of intention to plead guilty, the adjusted
offense

level

recommendation

was

29.

provided

in

The
the

parties

agreed

pre-sentence

report

with

the

that

the

applicable criminal history level was category IV, which yielded
an

advisory

counts,

in

guideline

range

addition

to

of
a

121

to

mandatory

151

months

minimum

for

those

seven-year

consecutive sentence for count three.
Petitioner was sentenced to a total term of imprisonment of
228 months, consisting of concurrent sentences of 60 months for
count one, 144 months for count two, and 120 months for count

10

four, followed by the mandatory minimum consecutive term of 84
months for count three.2
D.

Postconviction Motions

Petitioner did not file a notice of appeal.

On September

16, 2010, however, he filed the pending motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
No. 122).3

(ECF

He raises the following grounds:
(1) that he was “denied his Sixth Amendment
right to the effective assistance of counsel
by counsel’s failure to file a requested
appeal” (id. at 4);
(2) that “trial counsel was ineffective by
representing [Petitioner] in a jurisdiction
where he was not legally authorized to
practice” (ECF No. 122-1, at 8);
(3) that
“trial
counsel
ineffectively
assisted
[Petitioner]
by
failing
to
investigate the facts and law and further by
advising [Petitioner] to plead guilty” (id.
at 9); and
(4) that “[t]he failure of counsel to seek a
downward departure to reward [Petitioner]
for accepting responsibility on Counts One,
Two, and Four of the indictment” constituted
ineffective assistance (id. at 12-13).

In

support

affidavit.

of

his

motion,

(ECF No. 123-1).

Petitioner

separately

filed

an

The government was directed to

2

The sentence included a total five-year term of supervised
release, plus restitution and special assessment fees.
3

Due to inconsistent pagination, references to page numbers
of Petitioner’s § 2255 motion are to those designated by the
court’s electronic case filing system.
11

respond,

and

did

so

on

March

18,

2011.

(ECF

137).

(ECF No. 141).4

Petitioner filed reply papers on May 11, 2011.
II.

No.

Standard of Review
Title

28

U.S.C.

§

2255

requires

a

petitioner

asserting

constitutional error 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.”
movant

is

entitled

to

have

his

While a pro se

arguments

reviewed

with

appropriate deference, see Gordon v. Leeke, 574 F.2d 1147, 1151–
53 (4th Cir. 1978), if the § 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 summarily denied.

See 28

U.S.C. § 2255(b).
III. Analysis
Claims of ineffective assistance of counsel are governed by
the

well-settled

standard

adopted

4

by

the

Supreme

Court

in

On July 31, 2012, Petitioner filed a motion for leave to
amend his motion, citing further case law in support of his
claims.
(ECF No. 145).
The government does not oppose this
motion and it will be granted. Additionally, Petitioner filed,
on April 25, 2013, a “motion to advance cause,” requesting
prompt decision of his § 2255 motion.
(ECF No. 151).
The
filing of the order accompanying the instant opinion will render
this motion moot. Accordingly, it will be denied.
12

Strickland v. Washington, 466 U.S. 668 (1984).

To prevail on a

claim under Strickland, the petitioner must show both that his
attorney’s

performance

reasonableness

and

fell

that

he

below

an

objective

suffered

Strickland, 466 U.S. at 687.

actual

standard

prejudice.

of
See

To demonstrate actual prejudice,

Petitioner must show there is a “reasonable probability that,
but

for

counsel’s

unprofessional

errors,

proceeding would have been different.”
In

the

Strickland

analysis,

the

result

of

the

Id. at 694.
there

exists

a

strong

presumption that counsel’s conduct falls within a wide range of
reasonably

professional

conduct,

and

courts

must

deferential in scrutinizing counsel’s performance.

be

highly

Strickland,

466 U.S. at 688–89; Bunch v. Thompson, 949 F.2d 1354, 1363 (4th
Cir. 1991).

Courts must assess the reasonableness of attorney

conduct

of

“as

the

time

their

actions

conduct’s consequences after the fact.”
897, 906 (4th Cir. 2000).

occurred,

not

the

Frye v. Lee, 235 F.3d

Furthermore, a determination need not

be made concerning the attorney’s performance if it is clear
that

no

prejudice

deficiency.
A

could

have

resulted

from

some

performance

See Strickland, 466 U.S. at 697.

petitioner

who

pleads

guilty

has

an

especially

burden in establishing an ineffective assistance claim.

high

As the

Supreme Court has explained, “[t]he plea process brings to the
criminal justice system a stability and a certainty that must
13

not be undermined by the prospect of collateral challenges in
cases . . . where witnesses and evidence were not presented in
the first place.”
745–46

Premo v. Moore, ––– U.S. ––––, 131 S.Ct. 733,

(2011).

assistance

in

Thus,
the

a

context

petitioner
of

a

alleging

guilty

plea

“substantial burden . . . to avoid the plea[.]”
A.

ineffective
must

meet

a

Id. at 746.

Failure to Appeal

Petitioner initially faults his trial counsel for failing
to file a notice of appeal.

In the affidavit accompanying his §

2255 motion, he asserts that he “requested [counsel] to appeal,
understood

that

an

appeal

would

be

filed,

learned that no appeal had been filed.”
In

response,

authority,

the

that

government
“[b]ecause

argues,

and

subsequently

(ECF No. 123-1 ¶ 10).

without

[Petitioner]

citation

waived

his

to

right

any
to

appeal his conviction, he cannot now collaterally attack this
sentence by claiming his counsel was ineffective for failing to
file an appeal.”

(ECF No. 137, at 4).

The government is mistaken.

Initially, Petitioner did not

waive his right to appeal “his conviction,” as the government
now asserts.

Rather, he waived his right to appeal his sentence

under certain circumstances.

(See ECF No. 68 ¶ 11).

See United

States v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007) (“the
district

court

incorrectly

observed

that

Poindexter’s

appeal

waiver covered an appeal of his conviction, as opposed to just
14

an appeal of his sentence”); Bridgeman v. United States, 229
F.3d

589,

(7th

591

Cir.

2000)

(finding

“the

government

mischaracterize[d] the scope of the waiver at issue” where the
defendant “only agreed not to contest his sentence” and “the
plea agreement [was] silent as to a waiver of any challenge to
his underlying conviction” (internal emphasis removed)).
In the Fourth Circuit, moreover, “an attorney is required
to file a notice of appeal when unequivocally instructed to do
so by his client, even if doing so would be contrary to the plea
agreement and harmful to the client’s interests.”
492 F.3d at 273.
defendant

who

Poindexter,

Like the instant case, Poindexter involved a

signed

a

plea

agreement

limitations on the right to appeal.

containing

explicit

After a sentence within the

guidelines was imposed and no appeal was noted, the defendant
filed a § 2255 motion alleging, in part, that “he was denied the
effective assistance of counsel when his attorney failed to file
a timely notice of appeal after he unequivocally instructed his
attorney to do so.”

Poindexter, 492 F.3d at 266.

That motion

was

district

evidentiary

denied

hearing,

on

because

he

established

by

the

the

basis

“was
by

the

that

court,
the

without

defendant

sentenced

within

the

Sentencing

Guidelines

an

could

not

sentencing

and,

prevail
range

therefore,

any

challenge to his sentence would fall under the appeal waiver
contained in the plea agreement.”
15

Id. at 267.

In vacating the district court’s ruling, the Fourth Circuit
relied principally on Roe v. Flores-Ortega, 528 U.S. 470 (2000),
for

the

propositions

defendant’s

specific

that

“an

instruction

attorney
to

file

who
a

disregards

timely

notice

a
of

appeal acts in a professionally unreasonable manner” and that “a
presumption of prejudice applies when an attorney’s deficient
performance deprives the defendant of an appeal.”

Poindexter,

492 F.3d at 268 (citing Flores-Ortega, 528 U.S. at 477, 483).
Thus,

in

the

Fourth

Circuit’s

view,

“[o]nce

Poindexter

unequivocally instructed his attorney to file a timely notice of
appeal,

his

failing

to

attorney
do

unreasonable

so,

was
“his

manner”;

unprofessional

conduct

under

an

attorney
and

obligation
acted

in

“[b]ecause

resulted

in

to

a

do

so”;

by

professionally

his

Poindexter

attorney’s
losing

his

appellate proceeding, he [] established prejudice under FloresOrtega as well.”

Id. at 269; see also United States v. Wright,

--- Fed.Appx. ----, 2013 WL 4258360, at *1 (4th Cir. Aug. 12,
2013) (“counsel’s failure to file a notice of appeal as directed
constitutes

per

se

ineffective

assistance”)

(citing

United

States v. Peak, 992 F.2d 39, 41-42 (4th Cir. 1993)).5

5

The Fourth Circuit’s position is in accord with the
majority of circuit courts to have addressed this issue.
See
Campbell v. United States, 686 F.3d 353, 359 (6th Cir. 2012);
Watson v. United States, 493 F.3d 960, 964 (8th Cir. 2007);
United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007);
Campusano v. United States, 442 F.3d 770, 774 (2d Cir. 2006);
16

Here,

the

record

reflects

that

Petitioner

unequivocally

asked his attorney to file a notice of appeal and that his
counsel failed to do so.
to

constitutionally

Under Poindexter, that failure amounts

ineffective

assistance

of

counsel.

The

government’s contention that any decision not to file an appeal
“was

objectively

reasonable”

because

an

appeal

“would

have

violated [Petitioner’s] plea agreement and controverted [his]
express intent when he agreed to accept [its] terms” (ECF No.
137, at 4) is irrelevant.

Moreover, Petitioner is not required

to demonstrate prejudice by showing, for example, the existence
of

a

non-frivolous

ground

for

appeal

that

would

have

been

brought “but for” his counsel’s deficient performance.

Gomez-Diaz v. United States, 433 F.3d 788, 793 (11th Cir. 2005);
United States v. Sandoval-Lopez, 409 F.3d 1193, 1197 (9th Cir.
2005); United States v. Garrett, 402 F.3d 1262, 1267 (10th Cir.
2005).
A minority of circuits have held that the failure to
file a notice of appeal upon request does not constitute
ineffective assistance of counsel per se.
See Nunez v. United
States, 546 F.3d 450, 456 (7th Cir. 2008) (holding that, absent a
showing of a non-frivolous issue that could have been raised on
appeal, “counsel should protect the client’s interest in
retaining the benefit of the plea bargain”); United States v.
Mabry, 536 F.3d 231, 241 (3d Cir. 2008) (finding that a habeas
petitioner cannot establish an ineffective assistance claim
“unless the waiver fails to pass muster under an entirely
different test: one that examines its knowing and voluntary
nature and asks whether its enforcement would work a miscarriage
of justice”); see also Agosto v. United States, Nos. 04-cr10336-NMG-5, 09-cv-11610-NMG, 2012 WL 3518130, at *2 (D.Mass.
Aug. 15, 2012) (adopting the minority view and noting that
“[t]he First Circuit is the only circuit court not to have
opined on the issue.”).
17

As Justice Sotomayor, then sitting on the Second Circuit,
explained in Campusano, 442 F.3d at 777:
[A]pplying the Flores-Ortega presumption to
post-waiver situations will bestow on most
defendants nothing more than an opportunity
to lose.
There will not be many cases in
which a defendant whose attorney fails to
file a notice of appeal after a plea
agreement and a waiver of appeal, and whose
hypothetical appeal seems meritless during
ineffective-assistance
habeas
review,
eventually prevails. But rare as they might
be, such cases are not inconceivable, and we
do not cut corners when Sixth Amendment
rights are at stake.
A defendant who
executes a waiver may sign away the right to
appeal, but he or she does not sign away the
right
to
the
effective
assistance
of
counsel.
For these reasons, Petitioner is entitled to relief in the form
of a belated appeal.

See United States v. Newell, Civ. No. AMD

04-3471, Crim No. AMD 00-0146, 2005 WL 1242064, at *1 (D.Md. May
25, 2006) (Davis, J.) (granting a belated appeal where, as here,
“the

government’s

efforts

to

obtain

an

affidavit

from

[the

petitioner’s] counsel [were] rebuffed”); see also Gordon-Bey v.
United States, Civ. No. RDB-11-2760, Crim. No. RDB-08-0123, 2013
WL 1431658, at *1 (D.Md. Apr. 8, 2013) (granting belated appeal,
without

a

hearing,

where

the

government

did

not

dispute

petitioner’s allegation that his counsel failed to comply with
request to file notice of appeal); cf. United States v. Wright,
No. 12-7468, 2013 WL 4258360, at *1 (4th Cir. Aug. 12, 2013)
(finding

district

court

erred
18

in

failing

to

conduct

an

evidentiary

hearing

where

“conflicting

affidavits”

showed

a

dispute as to whether petitioner asked his counsel to file a
notice of appeal).6
B.

Unauthorized Practice

Petitioner next contends that his trial counsel rendered
ineffective assistance by “representing [him] in a jurisdiction
where he was not legally authorized to practice.”
1, at 8).

(ECF No. 122-

According to Petitioner, the fact that his counsel

was not barred in Maryland resulted in prejudice because it
precluded him from collaterally attacking a prior state court
conviction

in

an

effort

to

avoid

the

armed

career

criminal

designation.7
As noted, however, Petitioner did avoid the armed career
criminal designation; in fact, he received the lowest possible
guidelines

range

contemplated

under

the

plea

agreement.

Moreover, he acknowledged five prior state court convictions in
the stipulation of facts attached to the plea agreement; he
6

The government asserts in its opposition papers that it
contacted Petitioner’s trial counsel, who “declined to comment
on this [r]esponse citing attorney-client privilege concerns.”
(ECF No. 137, at 8 n. 2).
7

Petitioner further suggests that the alleged fact that his
counsel was not barred in Maryland “rendered him ineligible to
negotiate a contract, such as the plea agreement entered in this
case.”
(ECF No. 122-1, at 12).
Assuming that Petitioner’s
trial counsel was not barred in Maryland, however, this had no
bearing on his ability to practice in federal district court,
and publicly available records reflect that he has been a member
of the district court bar since April 2008.
19

confirmed at rearraignment that those facts were true; and he
does

not

category,

dispute
nor

the

could

calculation

he

under

of

his

history

circumstances.

these

criminal

Thus,

Petitioner cannot show prejudice owing to his counsel’s failure
to

challenge

any

prior

state

court

conviction,

and

his

ineffective assistance claim in this regard cannot prevail.
C.

Failure to Investigate

Petitioner further alleges ineffective assistance due to
his counsel’s failure “to investigate the facts and law and
further by advising [him] to plead guilty.”
9).

(ECF No. 122-1, at

He asserts that his counsel “was well aware that [he]

wanted

to

proceed

to

a

jury

trial

on

[c]ount

[t]hree,

and

further [] advised [Petitioner] that he . . . could win [on]
that

count,”

but

“because

of

the

uncertainty

of

whether

[Petitioner] qualified for ACCA treatment, [c]ounsel told [him]
that he had to plead guilty to all four counts, even though he
was not guilty of [c]ount [t]hree.”

(Id. at 10).

According to

Petitioner, had his counsel conducted a proper investigation of
his prior convictions, he would have known Petitioner would not
qualify for the armed career criminal enhancement and Petitioner
“would have insisted on going to a jury trial.”
This

argument

is

belied

by

the

(Id. at 11).

record.

Absent

“extraordinary circumstances, the truth of sworn statements made
during a Rule 11 colloquy is conclusively established, and a
20

district court should, without holding an evidentiary hearing,
dismiss any § 2255 motion that necessarily relies on allegations
that

contradict

the

sworn

statements.”

United

States

v.

Lemaster, 403 F.3d 216, 221–22 (4th Cir. 2005); see also United
States v. Bowman, 348 F.3d 408, 417 (4th Cir. 2003) (“when a
defendant says he lied at the Rule 11 colloquy, he bears a heavy
burden in seeking to nullify the process”); Fields v. Attorney
Gen. of Md., 956 F.2d 1290, 1299 (4th Cir. 1992) (“Absent clear
and convincing evidence to the contrary, a defendant is bound by
the

representations

he

makes

under

oath

during

a

plea

colloquy”).
Petitioner
circumstances

has

not

warranting

presented

relief.

any

The

extraordinary

Rule

11

colloquy

demonstrates that he was repeatedly advised of a disagreement
between the parties as to application of the ACCA.

Indeed, this

disagreement was spelled out in the plea agreement itself, which
contemplated different offense levels and corresponding rights
to appeal based on whether the armed career criminal designation
were

found

Petitioner,

to
in

apply.
no

The

disagreement

uncertain

terms,

by

was

explained

the

court

to
at

rearraignment; in response, his counsel stated that “the parties
ha[d] looked at [the ACCA issue] closely and ha[d] determined
[that Petitioner] is not a career offender” (ECF No. 136, at
25); and Petitioner confirmed, under oath, that he understood
21

the disagreement and that it was, nevertheless, his desire to
plead guilty.

Moreover, he does not suggest what it is that his

counsel

have

would

investigation

–

nor

discovered
that

had

he

conducted

postconviction

review

an
of

adequate
his

prior

state court convictions was still available – and his post hoc,
conclusory

allegations

are

insufficient

to

establish

any

deficiency in his counsel’s performance.
In any event, the premise underlying this ground – i.e.
that Petitioner would have been likely to prevail at trial on
count three, alleging violation of 18 U.S.C. § 924(c), because
it was his co-defendant, rather than he, who brandished the
firearm during the kidnapping and robbery – is fundamentally
flawed.8

8

“The Fourth Circuit recognizes the full breadth of the

Title 18, section 924(c), provides, in relevant part:
Except to the extent that a greater minimum
sentence is otherwise provided by this
subsection or by any other provision of law,
any person who, during and in relation to
any crime of violence or drug trafficking
crime (including a crime of violence or drug
trafficking crime that provides for an
enhanced punishment if committed by the use
of a deadly or dangerous weapon or device)
for which the person may be prosecuted in a
court of the United States, uses or carries
a firearm, or who, in furtherance of such
crime,
possesses
a
firearm,
shall,
in
addition to the punishment provided for such
crime of violence or drug trafficking crime
–
22

conspiracy doctrine described in Pinkerton v. United States, 328
U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946),” and “[t]hat
doctrine

makes

conspirators

liable

for

all

reasonably

foreseeable acts of their co-conspirators done in furtherance of
the conspiracy.”

United States v. Cummings, 937 F.2d 941, 944

(4th Cir. 1991).

Here, there is no question that Petitioner and

his co-conspirators planned to use a firearm in the kidnapping
of the bank manager to facilitate their robbery of the bank
where

she

worked;

question.

indeed,

Petitioner

provided

the

weapon

in

Under these circumstances, the fact that he may not

have personally brandished the weapon during the kidnapping and
robbery is irrelevant.
both

reasonably

conspiracy,

Because the brandishing by Johnson was

foreseeable

Petitioner

was

and

done

guilty

of

in

furtherance
violating

18

of

the

U.S.C.

924(c)(1)(A)(ii), as he acknowledged, under oath, at the Rule 11
hearing.9

(i)
be
sentenced
to
a
term
of
imprisonment of not less than 5 years; and
(ii) if the firearm is brandished, be
sentenced to a term of imprisonment of not
less than 7 years.
18 U.S.C. 924(c)(1)(A).
9

Petitioner further asserts, in purely conclusory fashion,
that his counsel’s failure to request severance as to count
three “was both unreasonable and prejudicial” in that it
“coerced [him] into pleading guilty to an offense for which
he/is was actually innocent[.]”
(ECF No. 122-1, at 11).
23

D.

Failure to Seek Downward Departure

Finally, Petitioner faults his trial counsel for failing to
seek

a

downward

departure
Counts

to

reward

responsibility

on

One,

indictment[.]”

[him]

(ECF No. 122-1, at 12).

for

and

Four

Two,

accepting
of

the

He cites United States

v. Rodriguez, 64 F.3d 638 (11th Cir. 1995), for the proposition
that “the district courts [have authority] to grant a downward
departure from the statutory maximum penalty imposed pursuant to
U.S.S.G. § 5G1.1(a),”10 and argues that, “[h]ad counsel made such
a[n] argument . . . there is a reasonable probability that the
outcome would have been different.”
Petitioner

fails

to

explain

(ECF No. 122-1, at 12).
how

§

5G1.1(a)

applies

to

counts one, two, and four, for which he received concurrent
sentences.

While the statutory maximums for counts one and four

were below the guidelines, the maximum for count two was 25
years.

Thus, the guideline range of 121-151 months was not

above the statutory maximum for the combined offenses, and there
cannot have been any prejudice.

Furthermore, the Fourth Circuit

has not adopted the reasoning of Rodriguez.

See United States

v. Fuentes, 51 Fed.Appx. 378 (4th Cir. 2002).

Petitioner cannot show prejudice resulting from any deficiency
in this regard, however, because there was overwhelming evidence
of his guilt as to count three.
10

That section applies when a statutory maximum is lower
than the guideline range.
24

Furthermore, Petitioner ignores that, as part of the plea
agreement, he “agree[d] that with respect to the calculation of
the

.

.

.

advisory

characteristics,
departures

or

guidelines

sentencing
adjustments

range,

guidelines
set

forth

in

no

factors,
the

Guidelines will be raised or are in dispute.”
6).

At

rearraignment,

moreover,

other

offense
potential

United

States

(ECF No. 68, at

Petitioner

specifically

acknowledged his understanding that, pursuant to the agreement,
“there

[were]

no

other

offense

characteristics,

guideline

factors or any potential departures or other adjustments that
[were] going to be raised or [were] in dispute.”
at 26).
eligible

(ECF No. 136,

Thus, assuming Petitioner might have otherwise been
for

some

departure,

his

counsel

was

raising that argument by the plea agreement.

precluded

from

Accordingly, he

could not have rendered ineffective assistance by failing to do
so.
E.

Certificate of Appealability

Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. §§ 2254 or 2255, the court is required to issue
or deny a certificate of appealability when it enters a final
order adverse to the petitioner.

A certificate of appealability

is a “jurisdictional prerequisite” to an appeal from the court’s
order.

United States v. Hadden, 475 F.3d 652, 659 (4th Cir.

2007).

A certificate of appealability may issue “only if the
25

applicant has made a substantial showing of the denial of a
constitutional right.”

28 U.S.C. § 2253(c)(2).

Where the court

denies a petitioner’s motion on its merits, a prisoner satisfies
this

standard

find

the

by

demonstrating

court’s

assessment

debatable or wrong.
336–38 (2003);

that
of

reasonable

the

jurists

constitutional

would
claims

See Miller–El v. Cockrell, 537 U.S. 322,

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Where a motion is denied on a procedural ground, a certificate
of

appealability

will

not

both

“(1)

that

whether

the

demonstrate
debatable

issue

unless

jurists

petition

of

states

the

reason
a

valid

petitioner
would
claim

can

find

it

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 marks omitted).
Upon review of the record, the court finds that Petitioner
does

not

satisfy

the

above

standard.

Accordingly,

it

will

decline to issue a certificate of appealability on those issues
which have been resolved against Petitioner.

26

IV.

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

set

aside,

or

denied in part.

correct

sentence

will

be

granted

in

part

and

A separate order will follow.

________/s/_________________
DEBORAH K. CHASANOW
United States District Judge

27