Colely v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 10/29/2013. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
UNITED STATES OF AMERICA
:
v.

:

Civil Action No. DKC 13-0583
Criminal Case No. DKC 09-405

:
CASEY COLEY
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case is
the motion of pro se Petitioner, Casey Coley (“Mr. Coley” or
“Petitioner”), to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255 (ECF No. 114).

The issues have been

fully briefed, and the court now rules, no hearing being deemed
necessary.

Local Rule 105.6.

For the reasons that follow, the

court will deny the motion.
I.

Background
By an indictment filed on July 22, 2009, Petitioner was

charged with knowing, intentional, and unlawful distribution, on
various dates, of a mixture or substance containing a detectable
amount
known

of
as

3,4-methylenedioxymethamphetamine
“Ecstasy,”

(ECF No. 1).

Benzylpiperazine

(“MDMA”),

(“BZP”),

and

commonly

marijuana.

Then, by a superseding indictment filed on January

20, 2010, Petitioner was charged with knowing, intentional, and
unlawful

distribution

of

a

quantity

of:

(1)

a

mixture

or

substance containing a detectable amount of 3, 4- MDMA (Counts
1, 2, and 5); (2) a mixture or substance containing a detectable
amount

of

BZP,

which

is

commonly

distributed

as

“Ecstasy”

(Counts 3 and 6); (3) MDMA combined with BZP (Count 4); and (4)
marijuana (Count 6).

The superseding indictment also charged

Mr. Coley with possession with intent to distribute marijuana
(Count 8).

(ECF No. 36).

On April 12, 2010, following a four-day trial, a federal
jury convicted Petitioner of distribution of benzylpiperazine
(“BZP”), in violation of 21 U.S.C. § 841(a); distribution of
marijuana, in violation of 21 U.S.C. § 841(a); and possession
with intent to distribute marijuana, also in violation of 21
U.S.C. § 841(a).
months

of

release.
a

This court sentenced Petitioner to fifty-one

imprisonment

followed

(ECF No. 91).

citizen

of

Jamaica,

by

that:

on
(1)

September
the

3,

years

of

supervised

The court also ordered that Petitioner,
to

surrender

immigration official for deportation.
entered

five

2010.

Government

to

duly

(Id. at 4).

Petitioner

withheld

a

authorized
Judgment was

appealed,

exculpatory

arguing

evidence

in

violation of its obligations under Brady v. Maryland, 373 U.S.
83

(1963);

(2)

the

district

court

abused

its

discretion

in

refusing to give some of his proposed jury instructions on the
defense of entrapment; (3) the district court erred in refusing
his instruction defining reasonable doubt and that this issue
2

should be reviewed de novo; (4) the district court’s admission
of recordings of transactions between Coley and a confidential
informant violated his Sixth Amendment Rights; (5) the district
court erred in denying his motion to dismiss the charges in the
indictment related to BZP; and finally (6) the district court
erred in including acquitted conduct in calculating the advisory
Guidelines range.

The United States Court of Appeals for the

Fourth Circuit affirmed on all grounds.

See United States of

America v. Coley, 47 F.App’x 501 (4th Cir. 2011).

On February

21, 2012, the Supreme Court of the United States denied his
petition for a writ of certiorari.

See Coley v. United States,

132 S.Ct. 1609 (2012).
On February 18, 2013, while in federal custody, Petitioner
timely filed the instant motion to vacate, set aside, or correct
his

sentence.1

Petitioner

was

released

from

the

Bureau

of

1

Although the petition was not received by the clerk’s
office until February 22, 2013, it is dated February 18, 2013.
(ECF No. 114).
For the purpose of assessing timeliness of a
Section 2255 motion, the court deems it filed on the date it was
delivered to prison officials for mailing. See United States v.
Dorsey, 988 F.Supp. 917, 919-20 (D.Md. 1998).
Thus, the court
accepts February 18, 2013 as the operative date.
Along with the Section 2255 motion, Petitioner also
submitted a cover letter dated February 18, 2013, in which he
stated: “petitioner notify this court of the intent to
supplement the record pursuant to Rule 15 of [the Federal Rules
of Civil Procedure.]
To this end, petitioner requests
permission to file the supplemental memorandum of law in
support.”
(ECF No. 114-1).
Although Petitioner refers to a
“memorandum of law in support of this 2255 petition” throughout
3

Prisons (“BOP”) on March 20, 2013 and was turned over to the
U.S.

Immigration

and

Customs

Enforcement

for

deportation.

Petitioner was deported to Jamaica, his native country, on April
25,

2013.2

On

the

same

date,

the

Government

responded

Petitioner’s motion pursuant to the court’s order.

to

(ECF No.

116).
II.

Standard of Review
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

the motion, the court and the Government have not received a
supplemental memorandum after Petitioner filed the instant
motion, nor does the record reflect that any supplemental
materials from Petitioner have been filed.
2

Pursuant to 28 U.S.C. § 2255, “[a] prisoner in custody
under sentence of a court established by Act of Congress . . .
may move the court which imposed the sentence to vacate, set
aside or correct the sentence.” In Maleng v. Cook, the Supreme
Court stated in pertinent part that it is “not required that a
prisoner be physically confined in order to challenge his
sentence on habeas corpus. 490 U.S. 488, 491 (1989). The Court
then stated that it “ha[s] never held, however, that a habeas
petitioner may be ‘in custody’ under a conviction when the
sentence imposed for that conviction has fully expired at the
time his petition is filed.” Id. (emphasis added).
Here, before being deported and prior to filing his
petition, Petitioner’s sentence had not “fully expired.”
Specifically, Petitioner was in custody at BOP at the time he
filed the Section 2255 petition.
Furthermore, Petitioner’s
deportation did not terminate his five-year supervised release.
Although Petitioner is no longer incarcerated and has been
deported, Petitioner’s challenged sentence remains outstanding.
Accordingly, Petitioner is “in custody” for purposes of Section
2255 relief.
4

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

arguments

While a pro se
reviewed

with

appropriate deference, see Gordon v. Leeke, 574 F.2d 1147, 115153 (4th Cir. 1978), 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 summarily denied.

See 28

U.S.C. § 2255(b).
III. Analysis
Petitioner

makes

the

following

arguments

in

the

Section

2255 motion: (1) the court erred in using phenmetrazine as the
closest comparative substance to BZP when determining his total
marijuana

equivalence

for

sentencing

purposes;

(2)

the

court

violated 21 U.S.C. § 841(b)(1)(C) by imposing five years of
supervised

release;

(3)

ineffective

assistance

of

counsel

at

trial and on appeal; and (4) this court committed procedural
error at sentencing by failing to apply 18 U.S.C. § 3553(a).3

3

Aside from the ineffective assistance of counsel claim,
the petition is devoid of allegations that might explain
Petitioner’s failure to raise the remaining issues on direct
appeal.
Thus, it may be that at least some of Petitioner’s
claims
are
procedurally
defaulted.
As
will
be
seen,
Petitioner’s ineffective assistance of counsel claim lacks
merit. But because the Government has not raised the procedural
default issue, the court declines to do so sua sponte.
5

A.
Use of Phenmetrazine as the Closest Comparative
Substance to Calculate Petitioner’s Sentence
Petitioner

argues

that

the

court

“should

have

used

marijuana table of equivalency, rather than phenmetrazine.
error resulted in a much higher sentence.”

the
This

(ECF No. 114, at 4).

This argument lacks merit.
When Petitioner was sentenced in 2010, BZP was not listed
in

the

drug

Guidelines,
“Congress

quantity/equivalency

U.S.S.G.

has

never

§

tables

2D1.1(C).

criminalized

Mr.
BZP

in

the

Coley

itself,”

Sentencing

asserts
and

thus

that
“the

court should have used the marijuana table of equivalency” to
reach a guideline sentence.

(ECF No. 114, at 4).

In order to

calculate Mr. Coley’s base-offense level, however, the court was
required to use the “marihuana equivalency of the most closely
related

controlled

substance

U.S.S.G. § 2D1.1 cmt. n.5.

referenced

in

[the]

guideline.”

Section 2D1.1 of the Sentencing

Guidelines, cmt. n.5 provides, in relevant part:
In the case of a controlled substance that
is not specifically referenced in this
guideline, determine the base offense level
using the marihuana equivalency of the most
closely
related
controlled
substance
referenced
in
this
guideline.
In
determining
the
most
closely
related
controlled substance, the court shall, to
the
extent
practicable,
consider
the
following:
(A) Whether the controlled substance not
referenced in this guideline has a chemical
structure that is substantially similar to a
6

controlled
guideline.

substance

referenced

in

this

(B) Whether the controlled substance not
referenced
in
this
guideline
has
a
stimulant,
depressant,
or
hallucinogenic
effect on the central nervous system that is
substantially similar to the stimulant,
depressant, or hallucinogenic effect on the
central nervous system of a controlled
substance referenced in this guideline.
(C) Whether a lesser or greater quantity of
the controlled substance not referenced in
this guideline is needed to produce a
substantially similar effect on the central
nervous system as a controlled substance
referenced in this guideline.
During Petitioner’s sentencing, the Government argued that
MDMA was the most closely related substance to BZP.

Using MDMA

as the most comparable substance equates one gram of BZP with
500 grams of marijuana.

(Id. at 69).

Defense counsel disagreed

and introduced a chemistry expert, Dr. Thomas Lectka, at the
second session of the sentencing hearing held on September 2,
2010.

Dr. Lectka testified in support of Defendant’s position

that

phenmetrazine

substance

to

BZP.4

was
A

in

fact

chemistry

the

more

professor

closely
at

Johns

related
Hopkins

University, he explained the similarities in chemical structure

4

Dr. Lectka’s curriculum vitae provides that he obtained a
Bachelor of Arts degree in chemistry, a PhD in organic chemistry
from Cornell University, and was a National Institute of Health
post-doctoral fellow at Harvard University before he came to
Johns Hopkins as an assistant professor in 1994.
He was
promoted to professor in 2002.
7

between BZP and phenmetrazine and ultimately opined that, unlike
MDMA and BZP, BZP and phenmetrazine are substantially similar.
(ECF No. 102, at 12, 29-30).5

Citing studies on the subject, Dr.

Lectka

both

further

stimulants

and

opined
have

that
similar

BZP

effects.

and

phenmetrazine

Although

Dr.

are

Lectka

recognized that “the literature was often confusing and quite
contradictory . . . the substances in question . . . have,
generally speaking, comparable potencies from the point of view
of an organic chemist.”

(Id. at 15).

As noted during the

sentencing hearings, the guidelines inform that drug quantity
and type are important considerations in deciding an appropriate
sentence.

(ECF No. 96, at 18).

Accordingly, the court credited

Dr. Lectka’s testimony and the studies presented and concluded
that based on the evidence on the record, “the most closely
related

controlled

substance

referenced

in

the

guidelines

is

phenemtrazine,” which yielded a marijuana equivalent of 95.95
kilograms and a level 24 offense, and provided a Guideline range
of 51 to 63 months imprisonment.

(Id. at 62, 77).6

Notably,

after considering the Section 3553(a) factors, discussed supra,
the court sentenced Petitioner to 51 months, the lower end of
5

Dr. Lectka explained that given the chemical structure of
the two substances, he did not believe MDMA to be substantially
similar to BZP. (ECF No. 102, at 16).
6
The Government also argued that Defendant should be given
a two level enhancement for obstruction of justice, which the
court declined to do. (ECF No. 102, at 77, 79).
8

the

spectrum.

Guidelines

Moreover,

Drug

Equivalency

effective
Table,

November

Section

1,

2D1.1,

2012,
cmt.

the
8(D),

were amended to include BZP and a marijuana equivalency of 100
grams per gram of BZP, a greater equivalency than what the court
ultimately found in Mr. Coley’s case.7
In sum, Petitioner’s conclusory statement that “the court
should have used the marijuana table of equivalency” falls far
short of showing how the court, after considering the statutory
factors and the evidence on the record, erred in determining
that

phenmetrazine

was

the

most

closely

related

controlled

substance to BZP and sentencing him to the lower end of the
guidelines given the adjusted offense level.8
B.

Five-Year Supervised Release Term

Petitioner next argues that the court erred “in imposing
five

years

conviction.”

supervised

release

for

a

21

U.S.C.

841(b)(1)(C)

Petitioner contends that the statute “requires up

7

“The Commission reviewed scientific literature and
received expert testimony and comment relating to BZP and
concluded that BZP is a stimulant with pharmacologic properties
similar to that of amphetamine . . . the amendment establishes a
marijuana equivalency of 1 gram of BZP equals 100 grams of
marijuana.” United States v. Beckley, 515 F.App’x 373, 378 (6th
Cir. 2013).
8

Notably, the court accepted Defendant’s position at
sentencing that phenmetrazine was the controlled substance most
related to BZP and rejected the Government’s position that MDMA
was the more closely related drug, which would have yielded a
higher offense level than what Petitioner ultimately received.
9

to three years of supervised release [and] the court was under
the misunderstanding that it could impose five years.”
114, at 4).

(ECF No.

As explained during sentencing, when Petitioner’s

counsel first raised this issue, three years is plainly not the
maximum term of supervised release allowable under 21 U.S.C. §
841(b)(1)(c).

Under 18 U.S.C. § 3583(a), the court may include

as part of any sentence for a misdemeanor or felony “a term of
supervised release after imprisonment.”

Section 3583(b) sets

the maximum periods of supervised release.
3583(b)

provides

that

except

as

Notably, Section

otherwise

provided,

the

authorized terms of supervised release are
(1) for a Class A or B felony, not more
than five years;
(2) for a Class C or Class D felony,
not more than three years; and
(3) for a Class E felony, or for a
misdemeanor
(other
than
a
petty
offense), not more than one year.
18

U.S.C.

§

3583(b).

By

including

the

words

“except

as

otherwise provided,” this statute creates an exception for those
special statutes, such as those involving drug offenses, which
carry their own mandatory minimum periods of supervised release.
See United States v. Good, 25 F.3d 218, 220 (4th Cir. 1994).
Specifically, Section 841(b)(1)(C), which covers drug offenses,
provides that “[a]ny sentence imposing a term of imprisonment
under

this

paragraph

shall,

in
10

the

absence

of

such

a

prior

conviction, impose a term of supervised release of at least 3
years.”

21

U.S.C.

§

841(b)(1)(C)

(emphasis

added).

Accordingly, three years is only the minimum supervised release
term proscribed by Section 841(b)(1)(C).

See United States v.

Pratt, 239 F.3d 640, 647 (4th Cir. 2001) (rejecting petitioner’s
argument that three years is the maximum term of supervised
release

permitted

by

Section

841(b)(1)(C));

see

also

United

States v. Kelly, 15 F.App’x 44, 45 (4th Cir. 2001) (“[Petitioner]
has misread § 841(b)(1)(C), which clearly provides for a minimum
supervised

release

term

of

three

years,

not

a

maximum.”

(emphasis in original)).
C.

Ineffective Assistance of Counsel

Petitioner broadly asserts that “the issues raised herein
are issues that should have been raised on appeal.
counsel’s ineffectiveness, they were not.”

But due to

(ECF No. 114, at 4).

Claims of ineffective assistance of counsel are governed by the
well-settled standard adopted by the United States Supreme Court
in 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

that

fell
he

Strickland, 466 U.S. at 688.

below

an

suffered

objective
actual

standard

prejudice.

of
See

To demonstrate actual prejudice,

Petitioner must show that there is a “reasonable probability

11

that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”
In

the

Strickland

Id. at 694.

analysis,

there

exists

a

strong

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

professional

conduct,

and

courts

must

be

deferential in scrutinizing counsel’s performance.

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.”

occurred,

not

the

Frye v. Lee, 235 F.3d

897, 906 (4th Cir. 2000). Furthermore, a determination need not
be made concerning the attorney’s performance if it is clear
that

no

prejudice

deficiency.

could

have

resulted

from

some

performance

See Strickland, 466 U.S. at 697.

Here, the Government correctly argues that Petitioner takes
only

a

generalized

ineffectiveness,

swipe

without

at

defense

specifying

any

counsel’s
actions

purported

or

inactions

that fell outside the range of competence normally demanded of
attorneys in criminal cases.

(ECF No. 116, at 7).

Petitioner’s

motion, which contains nothing more than a conclusory allegation
that

his

alleges

attorney
no

was

factual

ineffective

basis

at

trial

and

whatsoever

that

his

on

appeal,

attorney’s

performance “fell below an objective standard of reasonableness
. . . under prevailing professional norms” Strickland, 466 U.S.
12

at 687-88.

In any event, even if Petitioner could show that his

attorney’s

conduct

“fell

below

an

objective

standard

reasonableness,” that does not end the inquiry.

of

Specifically,

Petitioner must still show, pursuant to the second prong of the
Strickland analysis, that his counsel’s “deficient performance
prejudiced the defense.”
equally

lacking

“[j]udicial

in

scrutiny

Id. at 687.

this
of

respect.

counsel’s

Petitioner’s motion is
Moreover,

performance

given

must

be

that
highly

deferential [because i]t is all too tempting for a defendant to
second-guess counsel’s assistance after conviction or adverse
sentence,” id. at 689, Petitioner’s motion does not even come
close to satisfying either prong of the Strickland standard.
D.
As

Section 3553(a) Factors
a

last

ditch

effort

to

challenge

his

sentence,

Petitioner argues that “the District Court committed procedural
error at sentencing by failing to apply 18 U.S.C. 3553(a).”
(ECF No. 114, at 5).
district

court

This argument is similarly unavailing.

must

explain

the

sentence

it

A

imposes

sufficiently, but need not mechanically discuss all the factors
listed in Section 3553(a).

See United States v. Montes-Pineda,

445 F.3d 375, 380 (4th Cir. 2006); see also United States v.
Carter, 564 F.3d 325, 329-30 (4th Cir. 2009) (district court need
not

robotically

tick

through

every

13

Section

3553(a)

factor;

rather,

district

court

must

place

on

record

individualized

assessment based on particular facts of case at hand).
Petitioner argues that “[a]t no time during the sentencing
did the court refer to 3553(a), and its impact,” when in fact
the court supported with reasons Petitioner’s ultimate sentence
based on the relevant 18 U.S.C. § 3553(a) factors.9

Indeed,

after concluding that phenmetrazine was the closest comparative
substance to BZP for sentencing purposes, the court turned to
the Section 3553(a) factors, specifically stating that “we now
have to consider the 3553(a) factors on all of this.”
102,

at

78).

The

court

considered

arguments

made

(ECF No.
by

the

Government and defense counsel regarding the specific Section
3553(a) factors, ultimately taking into account the fact that
9

18 U.S.C. § 3553(a) provides in relevant part:
Factors to be considered in imposing a
sentence . . . The court, in determining the
particular sentence to be imposed, shall
consider –
(1) the nature and circumstances of the
offense and the history and characteristics
of the defendant;
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the
offense, to promote respect for the law, and
to provide just punishment for the offense;
(B)
to
afford
adequate
deterrence
to
criminal conduct;
(C) to protect the public from further
crimes of the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical
care, or other correctional treatment in the
most effective manner.
14

this was Mr. Coley’s first conviction, the quantities of the
pills and marijuana he distributed and the proceeds from such
distributions, and the seriousness of the offense, noting that
although the drug at issue was “not heroin . . . not cocaine . .
. it is, nevertheless, a drug that is, for good reason, illegal
and needs to be addressed.”

(ECF No. 102, at 95).

Based on

Petitioner’s continued failure to take any responsibility and
insistence on placing all blame on the Government both at trial
and at sentencing, the court reasoned that “[t]he fact that [Mr.
Coley] continues to blame all of this on others and said he lost
his way, doesn’t give [the court] confidence that he wouldn’t
resort to this kind of conduct again,” especially given that, as
his

counsel

argued,

Petitioner’s

conviction

undermine his ability to otherwise earn a living.
Accordingly,

contrary

to

Petitioner’s

would

likely

(Id. at 97).

contention,

the

court

fully considered the Section 3553(a) factors in imposing his
sentence.
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 “only if the
applicant has made a substantial showing of the denial of a
15

constitutional right.”

28 U.S.C. § 2253(c)(2).

Where the court

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

standard
the

by

demonstrating

court’s

assessment

debatable or wrong.

that
of

reasonable

the

jurists

constitutional

would
claims

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

336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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 the issues
which have been resolved against Petitioner.
IV.

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

set aside, or correct his sentence will be denied.

A separate

order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

16