Bracmort v. USA-2255
Filing
2
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 9/26/2016. (c/m 09/27/2016 bus, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
UNITED STATES OF AMERICA
:
v.
:
Civil Action No. DKC 13-1257
Criminal No. DKC 10-249-6
:
JACINTO BRACMORT
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case is
a motion filed by Petitioner Jacinto Bracmort (“Petitioner”) to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 (ECF No. 406).1
to
appoint
counsel
Also pending are Petitioner’s two motions
(ECF
Nos.
407;
420),
motion
for
reconsideration to obtain court documents (ECF No. 405), motion
to receive a copy of the docket (ECF No. 436), and motion to
expedite response (ECF No. 437).
The issues have been briefed,
and the court now rules, no hearing being deemed necessary.
Local Rule 105.6.
For the following reasons, the motion to
vacate,
set
aside,
or
motions
to
appoint
correct
counsel
sentence
will
be
will
denied;
be
denied;
the
the
motion
for
reconsideration to obtain court documents will be denied; the
motion to receive a copy of the docket will be granted; and the
motion to expedite response will be denied as moot.
1
All citations to electronic court filings refer to the
docket in the criminal case.
I. Background
Petitioner
was
charged
with
one
count
of
conspiracy
to
distribute and possess with intent to distribute 280 grams or
more
of
cocaine
base,
a
quantity
of
a
mixture
or
substance
containing a detectable amount of cocaine, and 100 grams or more
of phencyclidine (“PCP”), in violation of 21 U.S.C. § 846.
No. 256) (second superseding indictment).
indictment,
charging
Petitioner
and
(ECF
The first superseding
five
co-defendants
with
conspiracy to distribute cocaine base and PCP between October
2009 and May 2010, was returned on June 2, 2010.
(ECF No. 24).2
A bench warrant was issued for Petitioner (ECF No. 35), who was
arrested and presented for an initial appearance on July 2, 2010
(ECF No. 67).
Due to Petitioner’s health issues, a renewed
initial appearance and detention hearing was held on July 6, at
which he was ordered detained by agreement.
(ECF Nos. 72; 74).
On August 29, 2011, following a five-day trial, a federal jury
convicted Petitioner of one count of conspiracy to distribute
controlled substances in violation of 21 U.S.C. § 846.
291).
(ECF No.
The jury found that less than 28 grams of cocaine base
and less than 100 grams of PCP were attributable to Petitioner.
(Id.).
2
Petitioner was sentenced to 120 months of imprisonment
A grand jury returned the operative second superseding
indictment shortly before trial to revise the threshold drug
quantities necessary for the conspiracy count to trigger
enhanced penalties under 21 U.S.C. §§ 841(b)(1)(A), (B).
(ECF
No. 256).
2
followed by five years of supervised release, the bottom of the
sentencing
guideline
range.3
entered on April 24, 2012.
(ECF
No.
359).
Judgment
was
(ECF No. 359).
Petitioner informed the court during his sentencing hearing
of the errors he wished to raise regarding his conviction and
sentencing, and accordingly, notice of appeal was sent to the
United States Court of Appeals for the Fourth Circuit on April
25, 2012.
(ECF Nos. 361; 362).
On appeal, Petitioner argued:
(1) the district court abused its discretion in denying his
request for a jury instruction on multiple conspiracies; and (2)
the district court erred in failing to make specific factual
findings regarding the drug quantities attributable to him for
sentencing purposes.
On December 13, 2012, the Fourth Circuit
affirmed on all grounds, concluding “that the evidence adduced
at trial established that Bracmort, cooperating witness Ricky
Moore, and co-defendant Rico Toliver were part of a ‘looselyknit association of members linked only by their mutual interest
in sustaining the overall enterprise of catering to the ultimate
demands
of
a
particular
drug
consumption
market[,]’”
and
therefore “the district court did not abuse its discretion in
denying
3
defense
counsel’s
request
to
instruct
the
jury
on
Petitioner’s final offense level was 26, and his criminal
record placed him in Criminal History Category VI, providing a
guideline range of 120-150 months imprisonment.
On October 7,
2015, the court reduced Petitioner’s sentence to 100 months
under 18 U.S.C. § 3582(c)(2). (ECF Nos. 426; 427).
3
multiple conspiracies.”
United States v. Bracmort, 499 F.App’x
261, 262-63 (4th Cir. 2012) (quoting United States v. Banks, 10
F.3d 1044, 1054 (4th Cir. 1993)) (ECF No. 393-2).
The Fourth
Circuit also concluded that the district court’s reliance on the
presentence
report
quantities
to
relevant
support
for
the
sentencing
factual
did
not
finding
of
drug
constitute
plain
error, and that the court was not obligated to make express
factual findings because the attributable drug quantities were
greater than those found by the jury.
Id. at 263-64.
Following
his direct appeal, Petitioner filed a handwritten motion “to
dismiss
the
case
[due]
to
the
180
rule.”
(ECF
No.
394).
Construing the motion as a motion for modification of sentence,
the
district
instructed
the
court
denied
clerk
to
the
motion
provide
forms
(ECF
and
No.
399),
and
instructions
for
Petitioner to file a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255.
Petitioner has been represented by six attorneys.4
appointed
Petitioner
attorney
at
his
William
Arnold
renewed
initial
4
Mitchell,
Jr.
appearance
Court-
represented
and
detention
Petitioner alleges that he was represented by seven
attorneys, although only six are identified in the record.
Petitioner explains in his reply that the seventh attorney,
Richard Sumod, was retained by Petitioner prior to his arrest.
Petitioner alleges that Mr. Sumod “stole [his] money” and he
“never saw Mr. Sumod again.” (ECF No. 413-1, at 1). Be that as
it may, Petitioner was subsequently provided with courtappointed counsel, and has not shown how Mr. Sumod’s conduct
could have prejudiced his defense.
4
hearing,
but
moved
to
withdraw
shortly
thereafter
due
to
a
conflict of interest with his representation of other clients,
of which he learned upon reviewing the initial discovery in
Petitioner’s case.
(ECF No. 80).
Following an attorney inquiry
hearing before Magistrate Judge William Connelly (ECF No. 81),
Mr.
Mitchell’s
motion
was
granted
(ECF
Woodward was appointed (ECF No. 83).
No.
89),
and
Pat
M.
Mr. Woodward served as
Petitioner’s counsel for approximately five months, during which
time Petitioner twice asked the court to remove Mr. Woodward as
his counsel.
(ECF Nos. 109; 112).
Petitioner withdrew his
first motion during an attorney appointment hearing.
110).
(ECF No.
Petitioner later renewed his motion, stating that Mr.
Woodward did not communicate with Petitioner or his wife in a
timely manner and that Petitioner did not feel comfortable with
his
representation.
(ECF
No.
112).
In
December
2010,
Woodward was removed and Joseph Roll Conte was appointed.
Mr.
(ECF
No. 127).
Mr. Conte served as Petitioner’s counsel through the jury
trial.
Petitioner made multiple requests to have Mr. Conte
removed as his attorney, alleging that Mr. Conte pressured him
to accept a plea agreement and did not provide Petitioner with a
copy of the discovery, allow him to review the wiretaps, or
adequately communicate with him about his case.
No.
172).
Four
attorney
inquiry
5
hearings
(See, e.g., ECF
were
held
before
Magistrate
Judge
Charles
B.
Day
prior
to
trial
to
address
Petitioner’s requests, at each of which Judge Day determined
that it was not necessary to replace counsel.
174; 188; 249).
(ECF Nos. 165;
Shortly before trial began, Charles Jay Soschin
entered his appearance to join Mr. Conte as trial counsel.
(ECF
No. 269).
One
week
after
the
jury
verdict,
Petitioner
and
co-
defendant Rico Toliver, without the assistance of counsel, filed
a
“Notice
to
File
Motion
for
New
Trial.”
(ECF
No.
298).
Because the co-defendants were represented, they were instructed
to file any motion through their attorneys.
Petitioner and Mr. Toliver responded:
(ECF No. 300).
“[O]ur attorneys will not
file what we want them to file. . . .
Neither of them came to
visit us until after the 14 days had expired. . . .
did not visit Mr. Bracmort at all.”
(ECF No. 308).
Mr. Conte
Petitioner
simultaneously filed a motion for a new trial and a motion to
appoint counsel, and later again requested new counsel through
correspondence to the court.
(ECF Nos. 309; 310; 322).5
Judge
Connelly granted Petitioner’s motion to appoint counsel after a
hearing, and appointed Teresa Whalen.
(ECF Nos. 323).
Prior to
his sentencing, Petitioner attempted to have Ms. Whalen removed,
and an attorney inquiry hearing was held before Judge Connelly.
5
Petitioner’s motion for a new trial was denied at his
sentencing hearing, as it did not raise any grounds that merited
a new trial. (ECF No. 386, at 3:2-9).
6
(ECF No. 354).
Judge Connelly declined to appoint new counsel.
Petitioner also made an oral motion to strike Ms. Whalen as his
counsel during his sentencing hearing, which was denied.
No. 357).
there
was
(ECF
The court cited Judge Connelly’s determination that
no
justification
for
replacing
Ms.
Whalen
as
Petitioner’s attorney, and further noted that the record did not
indicate that Ms. Whalen had failed to do anything that she
appropriately should have done on Petitioner’s behalf.
386, at 22-25).
(ECF No.
Finally, the Fourth Circuit appointed Joshua
Treem as counsel for Petitioner’s appeal.
(ECF No. 364).
Petitioner filed a motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255 on May 1, 2013.
No. 406).
(ECF
The government opposed (ECF No. 410), and Petitioner
filed a reply (ECF No. 413), and an addendum (ECF No. 415).
Petitioner has also filed two motions to appoint counsel (ECF
Nos. 407; 420),6 a motion for reconsideration to obtain court
documents
after
an
earlier
motion
to
obtain
his
trial
and
sentencing transcripts was denied (ECF No. 405), and a motion to
receive
a
copy
of
the
docket
for
his
case
(ECF
No.
436).
Finally, Petitioner filed a motion to expedite a response to the
pending motions.
6
(ECF No. 437).
Petitioner previously requested the appointment of a
lawyer for his post-conviction relief filings (ECF No. 398),
which was denied because no matter was pending (ECF No. 400).
7
I.
Standard of Review
Section 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[.]”
28 U.S.C. § 2255(a).
If the
§ 2255 motion, along with the files and records of the case,
conclusively
shows
that
the
petitioner
is
not
entitled
to
relief, a hearing on the motion is unnecessary and the claims
raised
in
the
motion
may
be
summarily
denied.
See
id.
§ 2255(b).
II.
Analysis
Petitioner brings the instant § 2255 motion alleging that
he was denied effective assistance of counsel in violation of
the Sixth Amendment and that the court erred in refusing to
instruct the jury on multiple conspiracies.
(ECF No. 406).
A. Ineffective Assistance of Counsel
The
court
understands
Petitioner’s
motion
to
allege
ineffective assistance of counsel on the following grounds: (1)
the appointment of multiple attorneys in his case was per se
prejudicial, and all of his attorneys failed to investigate his
case,
prepare
meaningful
for
trial,
adversarial
or
otherwise
testing;
8
(2)
subject
the
Petitioner’s
case
to
attorneys
failed
to
negotiate
or
communicate
a
plea
offer;
(3)
Petitioner’s trial attorneys were not licensed to practice law
in this court; (4) Petitioner was denied his right to testify,
and
his
trial
witnesses
to
attorneys
testify;
erred
and
in
(5)
not
calling
his
Petitioner’s
sentencing and on appeal were ineffective.
character
attorneys
at
(See ECF No. 406-1).
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 Strickland claim, the petitioner must show both
that his attorney’s performance fell below an objective standard
of reasonableness and that he suffered actual prejudice.
See
Strickland, 466 U.S. at 688.
There is a strong presumption that counsel’s conduct falls
within
a
wide
courts
must
performance.
be
range
of
highly
reasonably
deferential
professional
in
conduct,
scrutinizing
and
counsel’s
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 “as of the time their actions
occurred, not the conduct’s consequences after the fact.”
v. Lee, 235 F.3d 897, 906 (4th Cir. 2000).
attorney
performance
requires
that
every
Frye
“A fair assessment of
effort
be
made
to
eliminate the distorting effects of hindsight, to reconstruct
the
circumstances
of
counsel’s
9
challenged
conduct,
and
to
evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689.
Furthermore, a determination need
not be made concerning the attorney’s performance if it is clear
that
no
prejudice
deficiency.
could
have
See id. at 697.
resulted
from
some
performance
To demonstrate actual prejudice,
Petitioner must show that there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”
1.
Id. at 694.
Multiple Attorneys and Pre-Trial Defense
Petitioner
throughout
first
the
argues
proceedings
that
was
having
“highly
multiple
unusual,”
attorneys
and
that
“[w]ith a new attorney assigned to the Petitioner at every turn
of the case,” it was “impossible” for him to be competently
represented.
(ECF No. 406-1, at 11-12).
Petitioner relies on
United States v. Cronic, 466 U.S. 648 (1984), asserting that the
number of attorneys he was appointed was effectively a denial of
counsel.
(Id. at 16).
Representation by different attorneys
during the pre-trial and trial, post-trial, and appellate phases
of
a
case
is
not
per
se
prejudicial.
One
of
Petitioner’s
attorneys was replaced due to a conflict of interest, but the
others
were
all
replaced
at
Petitioner’s
own
request.
A
criminal defendant cannot make repeated requests for new counsel
in order to then use the granting of those requests as the sole
basis for a collateral attack on his conviction.
10
Moreover,
although the number of attorneys appearing in this case may
appear
high,
there
representation.
Mr.
was
continuity
Mitchell
and
Mr.
in
Petitioner’s
Woodward
represented
Petitioner for brief periods of time at the beginning of his
case.
It was Mr. Conte, however, who represented Petitioner for
more
than
ten
months,
motions,7 and trial.
through
plea
negotiations,
pre-trial
Mr. Soschin appeared on Petitioner’s behalf
only with Mr. Conte as additional trial counsel.
Ms. Whalen
represented Petitioner for the six months following the trial
through
sentencing,
appellate
counsel.
prejudice
that
and
Mr.
Treem
Petitioner
resulted
merely
has
was
not
from
the
Petitioner’s
shown
any
only
errors
replacement
of
or
his
attorneys at his request.
Petitioner
further
investigate
his
case
attributing
this
argues
or
failure
that
prepare
to
the
his
for
lack
attorneys
trial,
of
failed
to
alternatively
continuity
in
representation (id. at 11), or to his trial counsels’ belief of
his guilt (id.
at 4, 10).
He also frames this failure to
investigate as a violation of his attorneys’ duty of loyalty, a
conflict of interest, and a violation of their duty to consult
7
Prior to the trial, Mr. Conte filed numerous motions on
Petitioner’s behalf, including a motion for a detention hearing
(ECF No. 145), a motion to adopt co-defendants’ motions to
suppress electronic surveillance (ECF No. 169), and two motions
to sever Petitioner from trial with his co-defendant (ECF Nos.
170; 261).
11
with him.8
(Id.
at 10).
specific
investigation
failure
to
that
was
deferred,
but
“interview[] . . . witnesses
prosecution.”
affidavit
Petitioner does not identify any
references
to
rebuff
(ECF Nos. 406-2, at 1; 406-1, at 11).
attached
to
the
government’s
opposition,
a
the
In an
Mr.
Conte
avers, “I have no knowledge of any investigation Mr. Bracmort is
referring
to.
investigation
As
far
as
that
was
not
I
recall
I
am
performed.
not
I
aware
never
of
any
made
any
statement to Mr. Bracmort that I would not investigate the case
because he was guilty.”
(ECF No. 410-4 ¶ 6).
He further denies
that he told Petitioner he would not prepare for trial, and
states, “I spent many hours preparing for this trial reviewing
the
evidence,
preparing
cross-examination,
instructions and closing argument.
voir
dire,
jury
Because the Jencks material
was provided late, I filed a motion to continue the trial in
order to have more time to prepare.”
Petitioner
8
has
not
shown
there
was
(ECF No. 410-4 ¶ 7).
any
investigation
his
Petitioner also alleges that his attorneys did not
communicate with him about the evidence in his case and refused
to provide Petitioner with discovery materials. He states that
Mr. Woodward “promised discovery, but failed to deliver it” (ECF
No. 406-1, at 3), and that Mr. Conte “also promised to provide
discovery but never provided the material” (id. at 4).
Mr.
Conte affirmed that all discovery materials were reviewed with
Petitioner (ECF No. 410-4, at 2), and in his affidavit attached
to his reply Petitioner acknowledges that Mr. Conte did show him
the discovery (ECF No. 413-1, at 3). He argues instead that he
was not given sufficient time to review the materials.
(Id.).
Petitioner has not demonstrated unreasonable performance, and
has not shown any prejudice on this ground.
12
attorneys unreasonably failed to do, or how such error would
have led to a different result in the proceedings.
Petitioner also alleges that he “met [Mr. Soschin] for the
first time at the defense table, just before he made his opening
statement,” and therefore argues that Mr. Soschin had no time to
prepare for trial.
(ECF No. 406-2, at 2).
In his affidavit,
Mr. Conte disputes this, stating that “Mr. Soschin met with Mr.
Bracmort, with me present, at least once prior to trial.”
No. 410-4 ¶ 9).
(ECF
Whether or not Petitioner met Mr. Soschin prior
to trial, Mr. Conte was lead counsel at trial, and had been
Petitioner’s counsel for more than eight months.
Petitioner has
not shown how the assistance of an additional attorney at trial
constituted ineffective assistance of counsel.
Petitioner also raises the failure of his attorneys to file
pre-trial motions for bond or for a speedy trial.
406-1, at 4; 406-2, at 3).
(ECF Nos.
The failure to file a bond motion
does not show deficient performance, see United States v. Burns,
990 F.2d 1426, 1437 (4th
Cir. 1993), but this allegation is
belied
well.
by
the
record
as
Petitioner
was
detained
by
agreement at his renewed initial appearance (ECF No. 74), Mr.
Conte did move for a detention hearing after his appointment
(ECF No. 145).
Judge Day denied Petitioner’s motion for release
at a hearing on February 8, 2011 (ECF No. 154), and again denied
pre-trial release at another bond hearing on April 26 (ECF No.
13
173).
Petitioner
has
also
failed
to
allege
any
prejudice
resulting from the delay in his trial.
Petitioner has not demonstrated that the conduct of his
attorneys prior to trial fell below an objective standard of
reasonableness, nor has he demonstrated that any alleged errors
or
the
fact
prejudiced
of
the
his
representation
defense
such
that
by
multiple
there
is
a
attorneys
reasonable
probability that the result of the proceeding would have been
different.
2.
Failure to Negotiate or Communicate Plea Agreements
Petitioner avers that he “was never presented with a plea
agreement, which [he] would have been amendable to.”
406-2, at 2).
(ECF No.
He alleges that Mr. Woodward did not communicate
a plea offer to him, and that “with a parade of ineffective
attorneys, there was never a consolidated effort to present the
options to the Petitioner so that a choice could be made.”
No. 406-1, at 12).
(ECF
Petitioner later admits, however, that he
did participate in at least one proffer session with Mr. Conte
and the government.
(ECF No. 413-1, at 1, 4 (referring to
“[e]ach time” Petitioner met with counsel and the government in
“proffer sessions”); see also ECF Nos. 410-4, at 2 (Affidavit of
Joseph
R.
participated
Conte)
in
(averring
three
that
counsel
“debriefing/proffer
and
sessions
Petitioner
with
the
assigned U.S. Attorneys”); 172, at 1-2 (Letter from Petitioner
14
to court dated April 22, 2011) (noting discussion with counsel
regarding plea offer and participation in “3 or 4” meetings with
the government)).
Petitioner argues instead in his reply that
Mr. Conte “would team up with the government” against him and
“t[h]reatened” him with “life in prison” if he did not accept
the plea offer.
(ECF No. 413-1, at 1, 4).
Petitioner also
states that the plea offers expired before he could act on them
or that he was not fully apprised of the offers until they
expired.
(ECF No. 413, at 3).
In addition to the alleged failure to communicate a plea
offer, Petitioner alleges ineffective assistance on the ground
that the decision he made to go to trial resulted in a longer
sentence, and “[a]t least one of his six pretrial attorneys
should have known that ‘[Defendants] who do take their case to
trial and lose receive longer sentences than even Congress or
the
prosecutor
might
think
appropriate,
because
the
longer
sentences exist on the books largely for bargaining purposes.’”
(ECF No. 406-1, at 13 (alteration in original) (quoting Missouri
v.
Frye,
132
S.Ct.
1399,
1407
(2012)).
He
argues
that
he
suffered prejudice because he “was not allowed the opportunity
to have a reasonable plea negotiated.”
alleges
that
he
“sought
to
come
to
(Id.).
an
Petitioner also
agreement
with
AUSA
regarding his minor involvement, as a drug user and not one
trafficking in drugs,” and that he “wanted to save prosecutorial
15
resources by not going to trial for what he felt what should
have been a simple possession charge[.]”
Upon
receipt
of
a
plea
offer,
(Id. at 12).
defense
counsel
should
communicate the offer in a timely and accurate manner and advise
their client of the alternatives and factors that should be
weighed, although the ultimate decision of whether to accept or
reject a plea agreement must be made by the defendant.
Murray, 947 F.2d 1106, 1110–11 (4th Cir. 1991).
Jones v.
As one court
recently explained:
In the context of plea negotiations, an
attorney’s failure to communicate a formal
plea offer to a criminal defendant falls
below
an
objective
standard
of
reasonableness.
See Missouri v. Frye, 132
S.Ct. 1399, 1410 (2012).
Because the
negotiation of a plea bargain is often the
most important for the defendant in terms of
the ultimate sentence he receives, defense
counsel has the obligation to communicate
formal offers from the prosecution.
Id. at
1407–08.
Carillo-Morales
v.
United
States,
952
F.Supp.2d
797,
803–04
(E.D.Va. 2013).
The government’s first plea offer was communicated to Mr.
Woodward on November 30, 2010.
1).
(ECF Nos. 410, at 1-2; 410-1, at
Even assuming that Mr. Woodward failed to communicate the
plea offer, however, Petitioner cannot show prejudice here.
Any
failure to communicate was cured when Mr. Conte was appointed in
Mr. Woodward’s place and communicated the offer, which had been
left open beyond the expiration date.
16
(See ECF No. 410, at 9,
17).
Mr. Conte was even able to negotiate more favorable terms
for Petitioner in the second, March 16, 2011, plea offer.
ECF No. 410-3, at 4).
(See
Petitioner has not established that he
was prejudiced by Mr. Woodward’s alleged failure to communicate
the plea offer.
Petitioner
offers
conflicting
arguments
Conte’s conduct during the plea negotiations.
regarding
Mr.
He alleges that
he was improperly pressured to accept the plea agreement (see
ECF No. 413-1, at 1, 3-4), but also argues that his counsel was
deficient for failing sufficiently to explain the possibility of
receiving a longer sentence at trial than was offered in the
plea agreement (see ECF No. 406-1, at 13).
Mr.
Conte’s
reasonable.
assistance
Petitioner
to
Petitioner
characterizes
Mr.
was
objectively
Conte’s
advice
regarding a possible life sentence as a threat, but Petitioner
was, in fact, facing the possibility of mandatory sentences and
a life sentence due to his prior felony drug convictions.
The
initial plea offer recommended a final offense level of 25 or 34
(ECF
No.
410-1,
at
4),
while
the
second
plea
offer
counsel
negotiated was for a final offense level of 23, for which the
guideline sentence is 92-115 months imprisonment (ECF No. 410-3,
at 4).
Mr. Conte communicated the offers, correctly conveyed to
Petitioner the likelihood of his conviction and the consequences
of pleading not guilty, and negotiated a second, more favorable
17
plea offer for Petitioner.
That he may have advised or even
urged Petitioner to accept the plea offer does not show that his
assistance was unreasonable, nor could this advice have resulted
in prejudice given that Petitioner decided to reject the plea
offer.
that
See Carillo-Morales, 952 F.Supp.2d at 804-05 (finding
attorney
“went
above
and
beyond
his
constitutional
requirements” by “continually urging Petitioner to accept the
government’s plea agreement,” and denying § 2255 motion in case
where Petitioner had rejected attorney’s advice to accept the
plea).
Moreover, Petitioner cannot show prejudice here because he
has not demonstrated a reasonable probability that he would have
accepted any plea offer.
the
prejudice
element
“In the context of plea negotiations,
turns
on
whether
counsel’s
performance
affected the defendant’s final decision to accept or reject a
plea offer.”
Id. at 806-07 (citing Hill v. Lockhart, 474 U.S.
52, 59 (1985)).
The petitioner “must demonstrate a reasonable
probability that (1) ‘they would have accepted the earlier plea
offer had they been afforded effective assistance of counsel,’
and
(2)
‘the
plea
would
have
been
entered
without
the
prosecution canceling it or the trial court refusing to accept
it[.]’”
Merzbacher v. Shearin, 706 F.3d 356, 366 (4th Cir. 2013)
(quoting Frye, 132 S.Ct. at 1409).
Petitioner does not address
the second requirement at all, and his allegations that he was
18
amenable to a plea are contradicted by the record and even by
his statements in this motion.
Petitioner declares that his
attorney and the government attempted to “trick” or “scare” him
into accepting the plea agreement, but that he “would not allow
the government or Mr. Conte to scare him into plea[d]ing out to
something
petitioner
didn’t
do.”
(ECF
No.
413-1,
at
4).
Petitioner suggests that he might have pleaded guilty to a drug
possession
charge,
but
he
does
not
even
allege,
much
less
sufficiently demonstrate, that he would have admitted his guilt
to the conspiracy crime with which he was charged and convicted
and accepted a plea agreement were it not for the allegedly
deficient performance of his attorney.
3.
Unauthorized Practice of Law
Petitioner contends that his trial attorneys, Mr. Conte and
Mr. Sochin, rendered ineffective assistance by representing him
in
the
United
States
District
Court
for
the
District
of
Maryland, when they “were not members of the Maryland[] [B]ar
Association, and weren’t licensed to practice law in the State
at the time of the trial[.]”
(ECF No. 406-1, at 10).
The court appointed Mr. Conte, who is a private attorney
admitted to this district’s Criminal Justice Act (“CJA”) panel
of attorneys eligible for appointment in federal criminal cases.
(ECF No. 127).
In order to be admitted to the CJA panel, Mr.
Conte must have been in good standing in the federal bar of this
19
district.
Whether or not he is barred by the state of Maryland
has no bearing on his ability to practice in federal district
court, and publicly available records reflect that Mr. Conte has
been
a
member
of
the
district
court
bar
since
1989.
Mr.
Soschin, also a private attorney, filed an Entry of Appearance
to assist in the trial representation of Petitioner pursuant to
Local Rule 201.1.
(ECF No. 269).
Local Rule 201.1 provides:
A defendant in a criminal case may be
represented by (1) a member of the Bar of
this Court or (2) an attorney who certifies
that he or she is (a) a member in good
standing of the bar of the highest court of
any state or the District of Columbia and
(b) familiar with Federal Rules of Criminal
Procedure, the Federal Rules of Evidence,
the Federal Rules of Appellate Procedure,
and the Local Rules of this Court.
Local Rule 201.1.
Mr. Soschin affirmed in writing that he is a
member in good standing of the bar of the highest state court of
Virginia
and
Appearance.
the
District
(ECF No. 269).
of
Columbia
in
his
Entry
of
Accordingly, both Mr. Conte and Mr.
Soschin were authorized to represent Petitioner at trial.
4.
Denial of Right to Testify and Trial Defense
Petitioner contends that his trial counsel was ineffective
because counsel did not allow him to testify.
He asserts in his
supporting affidavit, “Not only did Mr. Conte refuse to initiate
the suppression of my priors, but they refused to let me testify
on my own behalf, which I begged him over and over to allow it.”
(ECF No. 406-2, at 2).
20
To
be
sure,
a
defendant
in
a
criminal
trial
constitutional right to testify on his own behalf.
has
a
See Rock v.
Arkansas, 483 U.S. 44, 51–53 (1987) (holding that the right to
testify
is
found
in
the
Fifth,
Sixth,
and
Fourteenth
Amendments); see also 18 U.S.C. § 3481 (“In trial of all persons
charged with . . . offenses against the United States . . . the
person
charged
witness.”).
shall,
at
his
own
request,
be
a
competent
A defendant’s attorney has an obligation to ensure
the defendant is informed of his right to testify, Sexton v.
French, 163 F.3d 874, 882 (4th Cir. 1998), and if counsel fails
to fulfill that obligation, the right to effective assistance of
counsel is implicated and counsel may be evaluated under the
test set forth in Strickland, Gilchrist v. United States, No.
DKC 08-1218, 2012 WL 4520469, at *19 (D.Md. Sept. 27, 2012).
Failure
to
inform
a
defendant
of
his
right
to
testify
is
different, however, than advising a defendant not to testify.
“Absent
evidence
of
coercion,
legal
advice
concerning
the
defendant’s right to testify does not constitute [ineffective
assistance of counsel].”
Carter v. Lee, 283 F.3d 240, 249 (4th
Cir. 2002) (alternation in original) (quoting Reyes-Vejerano v.
United States, 117 F.Supp.2d 103, 108–09 (D.P.R. 2000)).
Petitioner does not allege that he was not informed of his
right
to
testify,
but
rather
that
his
counsel
advised
against testifying and prevented him from testifying.
21
him
Where, as
here,
counsel
advises
a
defendant
on
the
benefits
and
disadvantages of testifying, regardless of whether the benefit
of hindsight shows the advice to be erroneous, that strategic
advice is inappropriate for after the fact second-guessing.
Hutchins
v.
Garrison,
724
F.2d
1425,
1436
(4th
Cir.
See
1983)
(“Counsel’s advice not to testify is a paradigm of the type of
tactical
decision
ineffective
that
cannot
assistance.”).
be
The
challenged
as
government
evidence
argues
of
that
Petitioner’s counsel “strongly recommended that Petitioner not
testify due to the impeachment he would face and introduction of
myriad convictions for crimes of moral turpitude.”9
410, at 15).
(ECF No.
Moreover, Petitioner was questioned about his
decision not to testify during the trial, and affirmed that it
was his choice not to testify:
MR. CONTE: Your Honor, both Mr. Soschin and
myself have discussed with Mr. Bracmort
whether he wishes to testify, and he’s taken
that under advisement during the entire
trial, and he has advised us that he will
not testify in this matter.
THE COURT: Okay.
correct?
Mr. Bracmort, is that also
DEFENDANT BRACMORT: Yes, Your Honor.
(ECF
No.
336,
at
54:6-13).
Regardless
of
the
reason
for
counsel’s advice, it is clear that Petitioner was informed of
9
Indeed, it is also unclear on what basis Petitioner
believes Mr. Conte should have moved to suppress his prior
convictions other than by advising Petitioner not to testify and
expose himself to impeachment.
22
his right to testify and had the opportunity to testify, but
chose not to do so.
Petitioner
also
takes
issue
call certain witnesses at trial.
with
counsels’
decision
not
At trial, Petitioner addressed
the court on this issue:
DEFENDANT BRACMORT: I want to have on record
that I did want my witnesses to come, but
the Commonwealth attorney said we’re not
going to use my witnesses, and I did want my
witnesses to come, too.
But I just wanted
to have that on the record.
THE COURT: Okay. There were witness names I
had been given ahead of time.
DEFENDANT BRACMORT: Right.
THE COURT: But I was advised up here at the
bench that the decision had been made by you
and your defense attorneys not to call any
of them at this time.
DEFENDANT BRACMORT: That
made by me. I wanted to.
my attorney.
(Id.
at
between
55:24-56:11).
Petitioner’s
The
decision
court
of
decision wasn’t
That was made by
explained
whether
to
the
difference
testify
and
his
attorneys’ strategic decision of whether to call witnesses, and
Mr. Conte clarified that the decision not to call Petitioner’s
character witnesses was made to prevent the jury from learning
of Petitioner’s prior convictions.
Following
this
discussion,
understood the decision.
(See id. at 56:14-60:5).
Petitioner
(Id. at 60:15-21).
indicated
that
he
Petitioner has not
shown that his attorneys’ conduct was unreasonable, and has made
23
only an unsupported allegation that the outcome of the trial
would have been different if he and his witnesses had testified.
Petitioner has failed to demonstrate ineffective assistance of
counsel on these grounds.
5.
Assistance of Counsel at Sentencing and on Appeal
Sentencing is a critical stage of a criminal prosecution at
which defendant has a right to effective assistance of counsel.
See United States v. Burkley, 511 F.2d 47, 51 (4th Cir. 1975);
Kratsas v. United States, 102 F.Supp.2d 320, 329 (D.Md. 2000).
Following the trial, Mr. Conte and Mr. Soschin were replaced by
Ms. Whalen at Petitioner’s request.
(ECF Nos. 323; 325; 327).
Petitioner argues that all of his attorneys were deficient for
failing
to
object
to
presentence
report,
sentencing
hearing.10
the
which
drug-quantity
was
(ECF
adopted
No.
406-1,
determination
by
at
the
court
11).
of
the
at
the
Petitioner
alleges that he “presented Ms. Whalen with a list of objections
and she refused to raise any of them,” after he reviewed the
presentence report.
(ECF Nos. 406-2, at 2; 406-1, at 6).
also
had
“believes
that
this
honorable
court
considered
He
his
objections, it would have had the reason to give the Petitioner
a downward departure due to his most minor role in the charged
conspiracy.”
10
(ECF No. 415, at 2).
There is no basis for Petitioner’s contention that all of
his
attorneys
were
responsible
for
objecting
to
the
presentencing report. Accordingly, this allegation is discussed
only as it relates to Ms. Whalen’s conduct.
24
Ms.
Whalen
did
object
to
the
base
offense
level
calculations in the revised presentence investigation report on
the basis that the jury found less than 28 grams of cocaine base
and less than 100 grams of PCP attributable to Petitioner, as
noted in the second addendum to the presentence report in this
case.
In response, the probation office calculated the base
offense level at a quantity within the jury’s findings, and
found
that
adoption
of
the
offense
the
level
presentence
was
unchanged.
report’s
factual
The
court’s
findings
was
challenged on direct appeal, and the Fourth Circuit affirmed,
noting
the
distinction
between
the
jury’s
findings
under
a
reasonable doubt standard, relevant to Petitioner’s exposure to
enhanced
statutory
sentencing
provisions,
and
the
court’s
analysis of the drug quantities attributable to him under a
preponderance of the evidence standard, relevant to sentencing.
Bracmort, 499 F.App’x at 264 (citing United States v. Young, 609
F.3d 348, 357 (4th Cir. 2010)).
To the extent Petitioner is
attempting to challenge the Fourth Circuit’s decision (see ECF
No.
415,
at
1),
he
cannot
do
so
on
a
§
2255
motion.
If
Petitioner is instead alleging that his attorney’s conduct was
deficient because she did not challenge the factual findings of
the presentence report themselves, he has not put forth any
grounds for challenging those findings that reasonably should
25
have been raised, or that would have affected the outcome of
sentencing.
Ms. Whalen also did argue at sentencing that Petitioner was
a minor or minimal participant and entitled to a role adjustment
pursuant to U.S.S.G. § 3B1.2(b) (ECF Nos. 342, at 2-5; 386, at
6:16-8:23),
below
the
history
and
characteristics (ECF Nos. 342, at 5-7; 386, at 17:5-21:10).
The
sentencing
and
further
guideline
argued
range
based
for
a
on
sentence
Petitioner’s
court considered these arguments, but found that a further role
reduction
level
was
was
inappropriate
based
only
on
given
the
that
drug
Petitioner’s
quantities
offense
Petitioner
personally had handled or attempted to broker, rather than the
higher
quantities
involved
in
reasonably foreseeable to him.
Accordingly,
Whalen’s
Petitioner
representation
has
at
the
conspiracy
that
were
(ECF No. 386, at 12:22-14:17).
failed
to
sentencing
demonstrate
fell
to
that
the
Ms.
level
of
deficient performance.
Finally, Petitioner alleges that his appellate counsel, Mr.
Treem, “threw up a shallow effort” after Petitioner would not
pay him additional money for his representation. (ECF No. 406-1,
at 6-7, 14).
represent
This allegation is unsupported, and Mr. Treem did
Petitioner
representation
that
on
appeal.
Petitioner
The
alleges
only
is
error
that
referred to the jury’s verdict as an “acquittal.”
26
Mr.
in
his
Treem
(Id. at 11).
Mr. Treem characterized the jury’s finding that Petitioner was
not responsible for the higher drug quantities necessary for
enhanced sentencing as an acquittal in order to argue that the
court
considered
acquitted
conduct
during
sentencing,
and
therefore had been required to make specific factual findings.
Petitioner has not met either prong of ineffective assistance
under Strickland.11
B. Jury Instruction on Multiple Conspiracies
Petitioner
separately
claims
that
the
court
erred
refusing to instruct the jury on multiple conspiracies.
in
The
Fourth Circuit affirmed the decision to deny a jury instruction
on
multiple
established
conspiracies,
a
single
finding
conspiracy
that
rather
“the
than
trial
evidence
multiple
smaller
ones,” and accordingly holding that denying the request was not
an
abuse
of
discretion.
Bracmort,
499
F.App’x
at
262-63.
Because the Fourth Circuit decided this issue on direct appeal,
it cannot be relitigated here.
11
To the extent Petitioner is claiming that the failure to
appoint counsel to pursue rehearing en banc or certiorari to the
Supreme Court was a denial of counsel (ECF No. 406-1, at 7), a
defendant cannot be deprived of the effective assistance of
counsel where is no constitutional right to counsel, and there
is no Sixth Amendment right to counsel for discretionary review
of a conviction.
See Wainwright v. Torna, 455 U.S. 586, 587
(1982); Ross v. Moffitt, 417 U.S. 600, 617 (1974); White v.
United States, No. 7:08CR54, 2013 WL 1497579, at *3 (W.D. Va.
Apr. 11, 2013).
27
III. Remaining Motions12
A. Motion to Appoint Counsel
Petitioner has filed two motions for the appointment of
counsel.
(ECF Nos. 407; 420).
(a)(2)(B),
a
appointed
counsel
discovery
petitioner
nor
a
Pursuant to 18 U.S.C. § 3006A
seeking
“[w]henever
hearing
is
relief
under
§
required.”
necessary,
2255
Here,
see
Rules
may
be
neither
Governing
Section 2255 Proceedings for the United States District Courts
R. 6(a), 8(c) (2010) (counsel should be appointed when a hearing
or discovery is required), and Petition has adequately set forth
and
supported
circumstances,
his
the
grounds
for
interests
of
relief.
justice
Under
do
not
these
require
appointment of counsel, and Petitioner’s motions will be denied.
B. Motion for Reconsideration to Obtain Court Documents
The
court
denied
Petitioner’s
initial
motion
to
obtain
copies of his trial and sentencing transcripts (ECF No. 403),
because Petitioner failed to provide a specific explanation as
to why those court documents were necessary and because he had
not filed a § 2255 motion at the time of his initial request.
(ECF No. 404).
reconsideration,
Petitioner now argues in his pending motion for
similarly
filed
prior
to
his
§ 2255
motion,
that he has shown a particularized need for the transcripts and
12
In addition to the motions discussed below, Petitioner
filed a motion to expedite a ruling on his pending motions.
(ECF No. 437). This motion will be denied as moot.
28
requests free transcript copies pursuant to 28 U.S.C. § 753(f).
(ECF No. 405).
As noted in the previous denial, § 753(f) provides, in
relevant
part,
that
“[f]ees
for
transcripts
furnished
in . . . habeas corpus proceedings to persons allowed to sue,
defend, or appeal in forma pauperis, shall be paid by the United
States out of moneys appropriated for those purposes,” but only
“if
the
trial
judge
or
a
circuit
judge
certifies
that
the
suit . . . is not frivolous and that the transcript is needed to
decide
the
issue
presented
by
the
suit[.]”
As
the
Fourth
Circuit has explained:
It is settled in this circuit that “an
indigent is not entitled to a transcript at
government expense without a showing of the
need, merely to comb the record in hopes of
discovering some flaw.”
United States v.
Glass, 317 F.2d 200, 202 (4th Cir. 1963);
accord United States v. Shoaf, 341 F.2d 832
(4th Cir. 1964).
Jones v. Superintendent, Va. State Farm, 460 F.2d 150, 152 (4th
Cir. 1972); see also United States v. Hamlett, 128 F.App’x 320,
321 (4th Cir. 2005) (affirming denial of transcript request where
petitioner “failed to establish why she cannot, without copies
of
the
support
transcripts,
of
her
set
claim,”
forth
as
in
summary
required
by
form
the
the
Rules
facts
in
Governing
Section 2255 Proceedings R. 2(b)).
Petitioner provides no explanation for why transcripts are
needed to set forth the facts of the case, but rather sets forth
29
the
facts
supporting
his
§ 2255
claim
reconsideration to obtain court documents.
5).
in
his
motion
for
(ECF No. 405, at 1-
He similarly set forth those facts in his subsequent § 2255
motion.
(ECF
transcripts
are
No.
406-1,
thus
at
2-7).
unnecessary.
Free
copies
Accordingly,
of
his
Petitioner’s
motion for reconsideration to obtain court documents will be
denied.
C. Motion to Receive Docket for Case
Petitioner has also moved to receive a copy of the docket
sheet.
(ECF No. 436).
Petitioner previously requested copies
of the docket sheet through correspondence to the court.
Nos. 416; 421).
(ECF
In response, copies of the docket were sent to
Petitioner, care of the wardens of the facilities in which he
was housed.
(ECF Nos. 417; 418; 422; 423).
Petitioner’s motion
will similarly be granted, and a copy of Petitioner’s docket
sheet shall be mailed to the Warden of his present place of
confinement, so that access to the criminal docket sheet can be
made available to Petitioner in accordance with prison policy
and procedures.
IV. Conclusion
For the foregoing reasons, Petitioner Jacinto Bracmort’s
motion to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255 will be denied.
30
Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. § 2255, the court is also required to issue or
deny a certificate of appealability when it enters a final order
adverse to the applicant.
A certificate of appealability is a
“jurisdictional
prerequisite”
earlier order.
United States v. Hadden, 475 F.3d 652, 659 (4th
Cir. 2007).
to
an
appeal
from
the
court’s
A certificate of appealability may issue “only if
the applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
Where the court
denies petitioner’s motion on its merits, a petitioner satisfies
this
standard
by
demonstrating
that
reasonable
jurists
would
find the court’s assessment of the claim debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El
v. Cockrell, 537 U.S. 322, 336–38 (2003).
Upon review of the
record, the court finds that Petitioner does not satisfy the
above standard.
certificate
of
Accordingly, the court will decline to issue a
appealability
on
the
issues
which
have
resolved against Petitioner.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
31
been
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