Barnes v. USA - 2255

Filing 4

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 5/7/2014. (kns, Deputy Clerk)(c/m 5/8/14)

-_....IFlED
IN THE UNITED STATES DISTRICT
FOR THE DISTRICT
JERRY BARNES, pro se

OF MARYLAND

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Petitioner

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HAY-82014
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a.EIICUl.lMITIIlrrOOURT
DISTlIlCT 01' IUJIVUNO

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v.

COURT----"

----JMBlaJ

Crim. No. PJM 06-0178
Civil No. PJM 12-3474

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UNITED STATES OF AMERICA

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Respondent

MEMORANDUM

OPINION

Jerry Barnes, pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence (Paper
No. 57 & 58), a Motion in Response to Government's

Default (Paper No. 64), and a Motion to

Dismiss Judge from Case (Paper No. 72). Having considered the Motions and the Government's
Opposition to same, the Courl will DENY them.
I.
Introduction
On April 28, 2006, Barnes pled guilty to one count of possession with intent to distribute
more than 5 grams of cocaine base, in violation of 21 U.S.c. !l 841 (a)(l). The Presentence
Report ("PSR") noted that Barnes was convicted in 1974 of robbery with a deadly weapon and in
1995 of assault with intent to disable, both in the Circuit Court for Prince George's County,
Maryland.

PSR at ~~32, 39. The PSR scored these two convictions as predicate crimes under

the Career Offender provision of the Sentencing Guidelines, V.S.S.G. !l4B 1.1, and therefore
computed his Criminal History Category as VI and Offense Level as 34. ld. at ~~22, 43.
At sentencing, the Court agreed with the PSR calculations, and then initially adjusted the
Offense Level downward to 31 for acceptance of responsibility.

Given Barnes's Criminal

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\

History Category of VI, his custody range under the Guidelines was 188-235 months. The Court
thereafter granted a 5-level downward departure under U.S.S.G. S5K 1.1, resulting in an Offense
Level 26 and a custody range of 120-150 months.
In weighing the 18 U.S.C. S 3553(a) factors, the Court observed that Barnes was "an
active participant" in a "drug conspiracy, which was a major one" and that his criminal history
was "pretty awlill." Tr. 81: 12-25. Ultimately, the Court chose to go below the advisory
guidelines range, taking into account the three years in which Barnes had "been in effect serving
time on the outside". Id. at 84:8-10. The Court gave Barnes "credit for those three years against
the 120 months. That's what brings down the number from 120 to 84." Id. at 84:10-12. And
that is what Barnes was given- 84 months imprisonment (and 5 years of supervised release).
Barnes appealed to the Fourth Circuit, arguing that neither the assault with intent to
disable conviction nor his armed robbery conviction should have been considered predicate
offenses to determine his Career Offender Status. The Fourth Circuit disagreed, finding that the
assault with intent to disable conviction qualified as a Career Offender predicate. United Slales
v. Barnes, 457 F. App'x 303, 305 (4th Cir. 2011). The Fourth Circuit also found that that there
was "sufficient evidence that a portion of Bamcs' s sentence following his 1974 robbery
conviction was served within fifteen years of the instant offense, thereby qualifying as a career
offender predicate."

Id. at 306.

After receiving two extensions, Barnes filed the present Motion to Vacate, Set Aside or
Correct Sentence (Paper Nos. 57 & 58). He also filed a "Motion in Response to Government's
Default" (Paper No. 64) because the Government had not yet responded to his Motion in a timely
fashion. After the Court granted the Government's Motion for Extension of Time to File

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Response to the Motion to Vacate (Paper No. 66), Barnes filed a Motion to Dismiss Judge from
Case (Paper No. 72).
II.
Claims for Relief
In his Motion to Dismiss Judge from Case, Barnes argues that the Court should be
disqualified from deciding the Motion to Vacate because the Court has been unable to give him
an impartial ruling.
In his Motion to Vacate, Barnes makes three ineffective assistance of counsel claims: (l)
Counsel was unaware the Government was seeking Career Offender status and should have
sought a continuance; (2) Counsel should have investigated whether Barnes was actually
innocent of the assault with intent to disable conviction; and (3) Counsel failed to inform Barnes
that he was classified as a Career Offender. Barnes also objects to the admission of certain
documents at his sentencing, which were introduced to prove the assault with intent to disable
conviction.
In his reply to the Government's opposition to his Motion to Vacate Barnes raises an
additional ineffective assistance of counsel argument, namely that counsel failed to present
positive evidence of Barnes's character, specifically his work history.
By way of a separate Motion, Barnes argues that the Government "defaulted" by failing
to respond within 60 days of the Court's Order directing the Government to file a response.
The Government has filed no response to the Motion to Dismiss Judge from Case or his
request for a Default Judgment based on the Government's late-filed response.
As for Barnes's ineffective assistance claims, the Government responds that Barnes's
allorney not only performed adequately but that any alleged failure would not have changed the

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outcome of the proceedings.

In fact, says the Government, defense counsel disputed that Barnes

was a Career Offender in motions filed prior to the sentencing hearing as well as at the
sentencing itself. Defense counsel also argued strenuously against the admission of documents
establishing the predicate offenses at sentencing. The Government construes Barnes's argument
regarding the admissibility of documents pertaining to his assault conviction as a
misrepresentation of the record and therefore meritless.
III.
Motion to Dismiss Judge from Case
In his Motion to Dismiss Judge from Case, Barnes alleges that the Court is biased and
unable to rule impartially on his Motion to Vacate.
The Court will construe his Motion as one pursuant to 28 U.S.C. ~ 455(a), which
provides that "[a ]ny justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned."
particular, ajudge shall disqualify himself"[w]here

In

he has a personal bias or prejudice

concerning a party, or personal knowledge of disputed evidentiary facts concerning the
proceeding"

~ 455(b)(I).

The critical question presented by this subsection "is not whether the

judge is impartial in fact," but rather whether another "might reasonably question [the judge's]
impartiality on the basis of all the circumstances."

Uniled Slales v. DeTemple, 162 F.3d 279,

286 (4th Cir. 1998).
Barnes alleges that the Court cannot be fair and impartial because: (I) The Court has a
"personal vendetta" against anyone associated with Lester Fletcher; (2) The Court let AUSA
Salem use "illegal documents" at sentencing; (3) The Court deprived Barnes of access to his
entire sentencing "transcript" and docket sheet; and (4) As set forth in his reply, the Court

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supposedly made intlammatory statements at sentencing. The Court answers these assertions
seriatim.
As for Lester Fletcher, the principal malefactor in the drug conspiracy involving Barnes,
although the Court also presided over Fletcher's case, "[a] judge's actions or experience in a case
or related cases ... do not constitute a basis to allege personal bias"

Sine

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Local No. 992 Inl'l

Bhd o[Teamslers, 882 F.2d 913, 915 (4th Cir. 1989). The Court properly allowed AU SA Salem
to introduce documents pertaining to Barnes's predicate convictions, as discussed at Part V,

inti'a. Barnes, and more particularly his counsel, had whatever access to Court papers a criminal
defendant is permitted to have. A free transcript of a sentencing proceeding, it may be noted, is
not a convicted defendant's entitlement as of right. None of the intlammatory statements
supposedly made by the Court appears in the record. For example, Barnes claims the Court
stated "you probably [have] done some things and feci you got away with them ....

In my mind,

you probably were guilty of those charges too." The Court denies ever making such a statement
or ever making such a statement to anyone in 29 years on the bench.
The Court tinds that Barnes has failed to establish any reasonable basis as to why the
Court's impartiality should be questioned, and his Motion to Dismiss Judge from Case will
therefore be denied.
IV,
Ineffective Assistance of Counsel

A.
Motion to Vacate
A motion to vacate, set aside, or correct sentence pursuant to 28 U.S.c.
"ehalleng[es] the validity of [a federal prisoner's] judgment and sentence."

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9 2255

In re Vial, 115 F.3d

1192, 1194 (4th Cir. 1997). Bccausc Barncs makes this challcngc pro se, his motion is "not
requircd to mect the same stringent standards" as attorney-filed pleadings. Estate of Jones v.
NlvlS Health Care of Hya/lsville, LLC, 903 F. Supp. 2d 323, 328 (D. Md. 2012).
In a motion to vacate, a defendant may raise constitutional claims that could have been
raised on direct appeal - but were not - only if he can show "cause" and "actual prejudice,"
Uniled Siaies v. Frady, 456 U.S. 152, 167-68 (1982), or "actual innocence."

Murray v. Carrier,

477 U.S. 478, 496 (1986) (noting the "extraordinary case, whcre a constitutional violation has
probably rcsulted in the conviction of one who is actually innocent"). A defendant can show
cause by proving, among other things, "a denial of the effective assistance of counsel." United
Siaies v. lvlikalajunas, 186 F;3d 490, 492-95 (4th Cir. 1999). However, "a collateral challenge
may not do service for an appeal." Frady, 456 at 165.

B.
Strickland Standard
The two-part test set forth in Strickland v. Washinglon, 466 U.S. 668 (1984) governs
ineffectivc assistance of counsel claims. A convicted dcfendant must show that "(I) his
[counsel's] perfomlancc fell bclowan objective standard of reasonableness, and (2) that [the
defendant] was prejudiced by the deficiency because it crcated a reasonable probability that but
for counsel's errors, the result of the proceeding would have been different."

United States v.

Hoyle, 33 FJd 415, 418 (4th Cir. 1994). In an ineffective assistance of counsel claim, the
defendant bears the burden of proof as to both prongs, each of which must bc carried to obtain
relicf. See Sirickiand, 466 U.S. at 697 ( "there is no reason for a court deciding an ineffective
assistancc claim ... to address both components of the inquiry if the defendant makes an
insufficient showing on one."); see, e.g., Booth-EI v. NUlh, 288 F.3d 571, 583 (4th Cir. 2002)

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(denying an ineffective assistance of counsel claim because the defendant could not demonstrate
that counsel's conduct prejudiced him).
Under Strickland's first prong, the defendant must show that trial counsel's assistance
"fell below an objective standard of reasonableness" "under prevailing professional norms."
Strickland, 466 U.S. at 688. In other words, the performance of petitioner's counsel must have
been outside ..the range of competence demanded of attorneys in criminal cases." Hill v.
Lockhart, 474 U.S. 52, 56 (1985).
To satisfy the second prong of Strickland, the defendant must show that "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 694. To demonstrate prejudice at the
sentencing stage, a defendant must show that, but for counsel's deficient performance, there was
at least a reasonable probability of a different sentence. Glover v. United States, 53 I U.S. 198,
203-04 (200 I); United States v. Soto, 10 F. App'x 226, 228 (4th Cir. 2001).
All of Barnes's ineffective assistance of counsel claims fail under both prongs.

c.
Failure to Request Continuance Regarding Career Offender Status
Barnes contends that his attorney "openly admitted in court" that she was surprised that
the Government was seeking Career Offender Status, and that she erred by not seeking a
continuance in order to prepare for the hearing.
At the outset, the Court notes that the sentencing transcript shows no evidence of surprise
by Barnes's attorney. To the contrary. counsel had clearly reviewed the Pre-Sentence Report
("PSR") and noted her objections prior to the November 2,2010 sentencing hearing. In August
20 I0 she filed a request with the Court to review the criminal history documents collected by

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U.S. Probation Office in support of the criminal history detailed in the PSR, which the Court
approved (Paper Nos. 23 & 24). Moreover, in Defendant's Sentencing Memorandum tiled by
counsel on October 29,2010, counsel argued that Barnes should not be classified as a Career
Offender because neither the assault with intent to disable nor the robbery convictions qualified
as predicate offenses (Paper No. 30). Counsel renewed these objections at the sentencing
hearing. Moreover, counsel argued at sentencing that certain documents evidencing the robbery
conviction should have been introduced by the Government prior to the sentencing hearing to
provide Barnes with adequate notice. Tr. 14:16-22; 15:20-16: 16. Whether or not defense counsel
prevailed on these arguments is of no consequence.

The issue here is - Did she fairly raise

them? The answer is she did. Barnes's attorney's performance was clearly "within the range of
competence normally demanded of attorneys in criminal cases"

Strickland, 466 U.S. at 687.

Barnes has also failed to show that his attorney's (allegedly) "deficient performance
prejudiced the defense," because even had the Court granted a continuance, there is no
"reasonable probability" that prolonging the proceedings would have led to a different outcome.
See id. Given his assault with intent to disable and robbery convictions, Barnes met the statutory
requirements for Career Offender Status, such that even if the Court had granted a continuance, it
would have reached the same decision as to Barnes's criminal history. Barnes has failed to
demonstrate both that his attorney" s performance was deficient or that he was in any way
prejudiced by that deficiency.

D.
Failure to Request Continuance to Discover New Evidence
In his 92255 Motion, and again in his "Supplementary Memorandum of Law and Motion
in Response to Government's

Default" (Paper No. 64), Barnes argues his attorney should have

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requested a continuance in order to investigate whether he was actually innocent of the assault
with intent to disable offense. Barnes has submitted a letter from his sister, the victim of the
assault, dated September 26, 2012, in which she claims that Barnes did not hit her but that she
was instead attacked by Barnes's then-girlfriend.

Barnes cites this letter as proof that he is

actually innocent of the predicate offense and that his counsel should have requested a
continuance to discover such evidence to invalidate the conviction.
But with the sole exception of convictions obtained in violation of the right to counsel, a
defendant has no right to collaterally attack prior eonvictions used for sentence enhaneement.
Custis v. United States, 511 U.S. 485, 496 (1994). Only after a prior conviction is vacated by the
court that rendered it maya petitioner "apply for reopening of any federal sentence enhanced by
the state sentences."

Id. at 497. Even then, "[v]acatur alone does not entitle a petitioner to

habeas relief." United States v. Pel/i/ol'd, 612 F.3d 270, 278 (4th Cir. 2010).
Accordingly, Barnes has not shown that his attorney's performance was deficient, nor is
there any reason to suggest that requesting a continuance to discover new evidence would have
changed the outcome of the Sentencing Hearing.

E.
Failure of Counsel to Inform Barnes about Career Offender Status
Barnes elaims that his attorney failed to inform him that he could be classified as a Career
Offender, and that he was prejudiced as a result. That claim is flatly contradicted by the record.
As discussed supra, the record clearly indicates that Barnes's attorney knew the Government was
seeking Career Offender status and so stated that in her objections months prior to the
sentencing, as well as at the sentencing itself. Furthermore, Barnes's plea agreement put Barnes
on notice "that there is no agreement as to his criminal history or criminal history eategory, and

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that his criminal history could alter his offense level ifhe is a career offender .... " Plea Agrmt.

,pO.

But even if Barnes himself was somehow unaware of this possibility, thcrc is still no

indication that any failurc to discuss Career Offender Status with Barncs would have led to a
different outcome. This argument is also without merit.

F.
Charactcr Evidcnce
In his Reply, Barnes for thc first timc argues that his conviction should be vacated
becausc his counsel failcd to present positivc cvidencc of his charactcr at the Sentencing
Hcaring; in particular, that shc failed to prcscnt a "character letter" that was sent to her from a
former supervisor, Neil Wrabley, and that she failed to subpoena witnesses who would have
testificd on his behalf. He details his work experience, and argues that his counsel never gave
the Court this information to consider.
Thc Court notes at thc outset that Barnes may not raise new ineffcctive assistance of
counsel arguments in this manner. Amendments (or even supplemental pleadings) in habeas
cases are not permitted outside of the statutc of limitations unless the amendment or supplement
"relates back" to the original pleading, which means that it "arose out of the conduct, transaction
or occurrence set out ... in the original pleading." Fed. R. Civ. P. 15; Mayle v. Felix, 545 U.S.
644,659 (2005). An amended habeas petition "does not relate back (and thereby escape [the
Antiterrorism and Effective Death Penalty Act]'s one-year timc limit) when it asserts a new
ground for relief supported by facts that differ in both timc and type from those the original
pleading set forth." Mayle, 545 U.S. at 650. Barnes's Reply was tiled alier the onc-year time
limit had passed, and raises an entirely new argumcnt for rclicf. It docs not "rclate back" to his

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original timely pleading, and is not therefore properly before the Court for consideration.

But

even ifit were, Barnes's argument is without foundation.
The character evidence Barnes complains of was in fact properly put before the Court by
his counsel. She submitted a thorough Sentencing Memorandum which set forth in detail
Barnes's work experience at Prince George's County Department of Public Works, and attached
a letter from his supervisor, Neal Wrabley, photographs of the equipment Barnes used, an email
from a Mr. Wrabley commending Barnes's performance, a performance evaluation, and a
eommendation.l

At the sentencing, a supervisor from the Department of Public Works and

Transportation actually testified about Barnes's work ethic, noting that he would hire Barnes
again. Although another supervisor was unable to testify because he had left to go to an
appointment, there is no indication that he failed to testify for any reason other than his own
scheduling conflict. If anything, the record discloses a highly effective assistance of counsel
performance by defense counsel in this regard.

v,
Objection to Document Establishing Predicate Offense
Barnes objects to the admission of a document introduced at the sentencing to prove the
assault with intent to disable conviction. He argues that because the documentation of that
conviction was not certified ("was missing a seal"), it should not have been admitted as evidence
against him. He also seems to argue that he in fact was not convicted of the predicate offense.
He points to a letter, attached as Exhibit 3 to his ~2255 Motion, from the Maryland Parole
Commission stating that they were unable to locate the actual commitment order from his files.

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This memorandum and the attached documents have been filed under seal of court. Paper Nos. 26, 27, 28.

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He argues that he was already serving a 4-year prison term at the time of the assault conviction
With respect to the assault with intent to disable conviction, the Government submitted
Exhibit 3 to the Sentencing Hearing, prcviously attached as Attachment A to their Sentencing
Memorandum.

U.S. Probation Officer Milton Gross testified that the document was a "certified

copy of the assault with intent to disable ... conviction" obtained from Prince George's County
Circuit Court. Tr. 36:23-37:3. Gross testified on cross-examination that one of his officers
obtained a "true test copy" of Exhibit 3. By contrast, the documents evidencing the robbery
conviction (Exhibit I) did not have a stamp or seal. Jd. at 41: 12-42:2. See a/so Tr. 40: 18-21 (Q:
"Exhibit I docs not have either the stamp or the stamp or the scal, is that right?" A: "That's
corrcct. "). 3
This ground is procedurally barred because Barnes did not raise it on direct appeal, and
because it is not a constitutional claim. See Frady, 456 U.S. at 167-68. The Court sees no
indication that Barnes's failure to raise this claim on direct appeal resulted from ineffective
assistance of counsel. See. e.g., United States \'. Mika/ajunas, 186 F.3d 490, 492-95 (4th Cir.
1999).
Even if Barncs could procccd with this argumcnt, it lacks merit. As the Fourth Circuit
has recently stated, "[i]n resolving a dispute regarding the PSR, the court may consider
information that 'has sufficient indicia ofrcliability to support its probable accuracy.' U.S.S.G. ~
6A 1.3(a). The party objecting to information in a PSR has an 'afTtrmative duty' to show that the

The Court notes that Barnes may be referring to a separate conviction for possession of cocaine, described at
Paragraph 37 of the PSR. for which he was charged on December 21, 1993. Barnes was sentenced on December

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15,

1995 to three years in jail for that offense, with credit for time served. PSR at ~37. Barnes was charged with
committing

the assault offense

on September

3,1995.

prior to being sentenced

for the offense

noted at Para. 37 of

the PSR. PSR at 1139.
3 In opposition,
the Government argues that Gross testified that the documents pertaining to Barnes's prior assault
with intent to disable conviction did not have a seal or stamp on them. Govt. Mem. at 9. But the Government then
quotes the excerpt of the transcript in which Gross was asked about the documents in support of the robbery
conviction. Gross testified that Exhibit 3, by contrast. was a "certified copy" and a "true test copy",

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information is incorrect:-

Uniled Slales v. Teny, 916 F.2d 157, 162 (4th Cir. 1990); see also

Uniled Slales v. McDowell, No. 13-4370,2014 WL 960256 at *3 (4th Cir. Mar. 11,2014)
(finding that a National Crime Information Center report was sufficiently reliable to attribute a
prior conviction to defendant).
The Court properly found "that the documents that [the Court] has before it are reliable.
Among the other things, we have the sworn statement of the supervisor of the Probation Pre-trial
Services Report saying that he personally retrieved this from the file of the defendant at the
Parole Commission."

Tr. 44:4-9. Although the dispute at sentencing was over the admissibility

of the documents evidencing the robbery conviction, even if the assault with intent to disable
conviction had not been certified (which it was), the Court clearly found that certification was
not required "when you've got the affirmation under oath by the representative of probation here
that this was from the defendant's file." Id. at 44:13-18. This Court appropriately found,
therefore, that the Barnes had not met his burden of showing the information in the PSR was
incorrect, Teny, 916 F.2d at 162, and that the documents establishing the assault conviction had
"sufficient indicia of reliability", V.S.S.G.

S 6A1.3(a).

Any ineffective assistance of counsel

argument here is entirely misplaced.
VI.

Government's Default
Barnes argues that the Government "defaulted" by failing to respond within 60 days of
the Court's January 25,2013 Order, as the Court directed in the Order. However, the Court
granted the Government's

Motion for Extension of Time to Respond nunc pro tunc on May 3,

2013. A Default Judgment against the Federal Government in a civil case will not be granted
unless the Petitioner is clearly entitled to the relief sought. Cf. Fed. R. Civ. P. 55(e). A fortiori it

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is unavailable where a defendant in a criminal case seeks to have a court vacate his conviction
because the Government was late in filing a written response to a Motion filed by defendant.
The Government's delay was expressly excused and does not constitute error of any kind.4
VII.
Certificate of Appealabilitv
Rule Il(a) of the Rules Governing

S 2255

cases provides that the district court "must

issue or deny a certificate of appealability when it enters a final order adverse to the applicant."
A certificate of appealability will not issue absent "a substantial showing of the denial ofa
constitutional right." 28 U.S.C.

S 2253(c)(2).

A prisoner satisfies this standard by demonstrating

that reasonable jurists would find that any assessment of the constitutional claims by the district
court is debatable or wrong, and that any dispositive procedural ruling by the district court is
likewise debatable. See AIiller-EII'. Cockrell, 537 U.S. 322, 336-38 (2003); Slack

1'.

McDaniel,

529 U.S. 473, 484 (2000). The Court has considered the record and finds that Barnes has not
made the requisite showing here.
VIII.
Conclusion
For the foregoing reasons, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence
(Paper No. 57& 58), Motion in Response to Government's Default (Paper No. 64), and Motion
to Disqualify Judge (Paper No. 72) are DENIED.
A separate Order will ISSUE.
lsI

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May _' 2014

UN

TER .1. MESSITTE
TATES DISTRICT JUDGE

Barnes himself sought and received more than one extension to put his arguments before the Court. It was hardly
unfair to give the Government an appropriate extension as well.

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