Blanchard v. United States of America
Filing
1
MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 11/1/2011. (kns, Deputy Clerk)(c/m Defendant Blanchard 11/3/11)
_FILED
RAY A. BLANCHARD
_ENTERED
_LOGGED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
_RECEIVED
N~~G:':'~~
vJ
*
II
11
*
BY
*
Petitioner,
UNITED STATES OF AMERICA
DEPUTY
Civil No. PJM 11-847
Crim. No. PJM 07-0143
*
*
v.
CLERK, U.S. DISTRICT COURT
DISTRICT OF MARYLAND
*
*
*
*
*
Respondent.
MEMORANDUM
OPINION
Ray A. Blanchard II, pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C.
S 2255
[Paper NO.1 03] and a Motion for Leave to File [Paper No. 112].
Having considered the Motions and the Government's Opposition thereto, the Court DENIES
the Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C.
S 2255
and finds the
Motion for Leave to File MOOT.
I.
On March 26, 2007, a federal grand jury returned an indictment charging Blanchard with
unlawful possession of a firearm by a convicted felon, in violation of 18 U .S.C.
S 922(g)(l).
Shortly thereafter, Blanchard filed a Motion to Suppress Evidence that police officers recovered
from his vehicle. The Court denied the Motion and found the following facts. A police officer
observed a Black Chevrolet Tahoe without a front license plate fail to stop at a stop sign and
speed down various roads. The officer chased after the vehicle and observed white substances
being thrown out the window. After the officer pulled over the vehicle, Blanchard emerged and
the officer observed in plain view a "white rock-like" substance on one of the seats; the officer
subsequently found two handguns in the center console of the vehicle.
-1-
'"
.
On November 14, 2008, following a jury trial, Blanchard was found guilty as charged in
the indictment. The Court sentenced Blanchard to 327 months in prison and 5 years of
supervised release. The Fourth Circuit affirmed the conviction and sentence. On March 31,
2011, Blanchard filed the instant Motion to Vacate, pursuant to 28 U.S.C.
S 2255
and then filed a
Supplemental Affidavit, which the Court returned as improperly filed. On June 23, 2011,
Blanchard filed a Motion for Leave to correct the deficiencies in his Supplemental Affidavit.
The Court has considered Blanchard's Supplemental Affidavit in evaluating the Motion to
Vacate.
II.
In his Motion to Vacate, Blanchard sets forth eight separate bases to vacate his
conviction: (1) lack of subject matter jurisdiction; (2) constitutionally defective counsel; (3)
illegal search and seizure during traffic stop; (4) due process violations based on alleged
prosecutorial misconduct and knowingly false testimony; (5) violation of a right to bear arms; (6)
double jeopardy for use of prior convictions; (7) cruel and unusual punishment; and (8) improper
admission of 404(b) evidence.
III.
A.
Blanchard's argument that this Court lacks jurisdiction because Congress never passed
the law under which he was convicted, fails. 18 U.S.C.
S 3231
grants United States District
Courts jurisdiction over all offenses against the laws of the United States. Blanchard was
convicted under 18 U.S.C.
S 922,
a statute properly enacted by Congress. Therefore, this Court
properly exercised subject matter jurisdiction over Blanchard's federal criminal prosecution.
-2-
----,.l---;.~------------------------------------------
B.
Blanchard's argument that he received ineffective assistance of counsel fails to meet the
two-prong test set forth in Strickland v. Washington. 466 U.S. 668 (1984). Under Strickland, a
convicted defendant must first show that his counsel's performance was deficient and then that
the resulting errors deprived him of a fair trial with a reliable result. Id. at 687. "Unless a
defendant makes both showings, it cannot be said that the conviction ... resulted from a
breakdown in the adversarial process that renders the result unreliable." ld. See also Powell v.
Kelly, 562 F.3d 656 (4th Cir. 2009) (relying on Strickland).
Under the first prong of the test, the defendant must show that counsel's assistance was
deficient, i.e. that it was unreasonable and detracts from the fairness and reliability of the trial.
Strickland, 466 U.S. at 687, 89. Because there is no objective standard, "a court deciding an
actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on
the facts of the particular case ... " ld. at 688-90. Attorneys often make strategic decisions in
defending their clients, and those decisions cannot be the basis of an ineffective assistance claim
if they were "made after thorough investigation of law and facts relevant to plausible
options ... " ld. at 690. "Because advocacy is an art and not a science, and because the
adversary system requires deference to counsel's informed decisions, strategic choices must be
respected in these circumstances if they are based on professional judgment."
Id. at 682.
Under the second prong of the test, the defendant must show that counsel's errors or
deficiencies "actually had an adverse effect on the defense." ld. at 693. The burden is on the
defendant to show that there was a reasonable probability of a different result had counsel not
committed the alleged errors. ld. at 694. A court assessing an ineffective assistance claim looks
at the evidence in the record. Taking the unaffected findings as a given, and taking due account
,-
;
of the effect of the errors on the remaining findings, a court making a prejudice inquiry must ask
if the defendant has met the burden of showing that the decision reached would reasonably likely
have been different absent the errors." Id. at 695-96.
Blanchard contends that his attorney: (l) was ineffective in collecting, presenting and
challenging evidence; (2) improperly waived his right to a speedy trial under the Sixth
Amendment without his consent; and (3) generally did not follow his directives.
First, Blanchard challenges numerous strategic decisions his counsel made regarding how
to collect, present, and challenge evidence. Each of these decisions appears to have been wellfounded in light of the facts of the case. For example, Blanchard challenges his counsel's
decisions as to whether to hire a private investigator, which witnesses to call, and whether to
object to or otherwise challenge certain pieces of evidence. Upon examination of the record, the
Court finds that these were the types of decisions typically calculated to minimize the damage to
his client and are worthy of deference as strategic decisions under Strickland. 466 U.S. at 681;
see also Goodson v. Us., 564 F.2d 1071, 1072 (4th Cir. 1977) (courts are reluctant to second
guess tactics of trial attorney's decision not to call witness); Us. v. Gouveia, 467 U.S. 180, 181
(1984) (defendant is not entitled to a private investigator, as matter of right to counsel); Bullock
v. Carver, 297 F.3d 1036, 1047 (lOth Cir. 2002) (defendant has burden of showing that counsel's
action or inaction was not based on valid strategic choice). Blanchard has failed to show that
these decisions were professionally unreasonable. As a further example, Blanchard challenges
his counsel's decision not to present evidence ofa tenuous relationship between Blanchard and
the police officers, positing that such evidence would have revealed police prejudice. The Court
finds that it was reasonable for counsel to determine that exploiting this relationship may hurt his
-4-
client before the jury. In each of the challenged instances, counsel made legitimate, professional
choices, and did not provide deficient assistance.
Even if Blanchard could satisfy Strickland's first prong, which he cannot, he could not
establish that the alleged errors prejudiced him under the second prong. See Strickland, 466 U.S.
at 691; Cousins v. Green, 416 Fed. Appx. 278, 282 (4th Cir. 2011). Blanchard has identified no
admissible, relevant evidence that was withheld from the jury, nor has he identified
governmental evidence that could have been properly excluded. On direct appeal, the Fourth
Circuit found no error in admitting the evidence seized by the police. Thus, even if Blanchard's
counsel challenged the evidence Blanchard now objects to, there is no indication such a
challenge would have changed the outcome. With respect to counsel's failure to hire private
investigators and call certain witnesses, Blanchard provides the court with nothing to establish
that a private investigator would have discovered any relevant information or that his suggested
witness would have provided testimony that would have changed the outcome. Therefore,
Blanchard fails to meet his evidentiary burden to establish prejudice. ld. at 283.
Second, Blanchard contends that counsel erred in requesting a preliminary report of
Blanchard's criminal background and falsely representing that Blanchard agreed that the time to
prepare this report was excludable under 18 U.S.C.
S 3161(h)(1)
in computing the time by which
his trial must commence under the Speedy Trial Act. This, too, fails the Strickland test.
Blanchard fails to show that counsel's decision was professionally unreasonable under the first
prong of the Strickland test. 466 U.S. at 693. Blanchard's own decision to request new counsel
caused the delay; new counsel needed time to learn the facts of the case and requested the filing a
preliminary report in order to effectively represent Blanchard. Blanchard also fails to show that
-5-
the resulting delay prejudiced him under the second prong of Strickland. Jd. at 688. Here, any
delay likely aided the defendant in affording his new counsel time to adequately prepare his case.
Finally, Blanchard asserts that his counsel generally failed to follow his directives.
Blanchard identifies several instances where counsel disregarded his wishes, including his desire
to point out perjured testimony. Even if counsel's disregard for Blanchard's wishes could fulfill
the first prong of the Strickland test, by no means does it pass the second prong. Blanchard
presents no evidence to support his contention that had counsel strictly followed his directives,
the outcome would have been any different.
Taken as a whole, Blanchard's ineffective counsel claims fail to meet the Strickland
standard.
c.
Blanchard's arguments that there was an illegal search and seizure during the traffic stop
and that the Court improperly admitted Rule 404(b) evidence were both previously addressed on
direct appeal, and the Fourth Circuit found no error. Previously litigated claims cannot be
relitigated. See Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976).
D.
Blanchard's arguments that his conviction and sentence (1) violated due process; (2)
violated a right to bear arms; (3) placed him in double jeopardy by using his prior convictions
against him; and (4) resulted in cruel and unusual punishment, have all been procedurally
defaulted. Blanchard could have, but chose not to, raise these arguments on direct appeal.
Therefore, each of these claims is barred unless Blanchard can show cause, actual prejudice, or a
miscarriage of justice. See United States v. Mikalajunas, 186 F.3d. 490, 492-93 (4th Cir. 1999).
-6-
Blanchard has shown no cause for failing to raise these issues on appeal, nor any prejudice or
miscarriage of justice resulting from these errors.
Even if these claims were not procedurally barred, they would fail on the merits. First,
Blanchard's assertion that certain witnesses testified falsely is unsupported by factual
contentions and thus insufficient to establish a violation of the Due Process Clause. Second, as a
convicted felon, Blanchard does not have a right to bear arms. Blanchard asserts that District of
Columbia v. Heller, 554 U.S. 570 (2008), holds that the right to bear arms shall not be infringed.
This is incorrect. Heller upholds the criminalization of a felon possessing fire arms under
statutes such as 18 U.S.C.
S 922(g)(l).
See id. Finally, the law is clear that using prior
convictions to enhance a sentence does not violate the double jeopardy clause, so there is no
cruel and unusual punishment. See United States v. Presely, 52 F.3d 64, 68 (4th Cir. 1995).
v.
For the foregoing reasons, Blanchard's Motion to Vacate, Set Aside, or Correct Sentence
[Document No. 103] is DENIED.
A separate Order will ISSUE.
x
November_'_,2011
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?