Washington v. USA - 2255

Filing 2

MEMORANDUM OPINION AND ORDER denying 50 Motion to Vacate (2255) ; denying 54 MOTION for Leave to File Oversized Memorandum of Law ; denying 58 MOTION to Amend 50 MOTION to Vacate under 28 U.S.C. 2255 ( Crimial Action RWT 11-cr-380) ; directing that a certificate of appealability shall not be issued;directing clerk to close civil action RWT 13-1893. Signed by Judge Roger W Titus on 7/1/2015. (c/m 7/2/2015 aos, Deputy Clerk) Modified on 7/2/2015 (aos, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JOHN FRANCIS WASHINGTON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Criminal No. RWT-11-0380
Civil No. RWT-13-1893

MEMORANDUM OPINION AND ORDER
Petitioner John Francis Washington pled guilty to two counts of unlawful possession of
firearms in violation of 18 U.S.C. § 922(g)(1) and was sentenced to ninety-six months of
imprisonment. ECF No. 34. Now pending before the Court is Petitioner’s twice supplemented
pro se petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence in which
Petitioner brings numerous claims in an attempt to demonstrate that he was denied his Sixth
Amendment right to effective assistance of counsel. ECF Nos. 50, 54, 58.
BACKGROUND
On September 14, 2010, a law enforcement officer observed Petitioner, a convicted felon
under Maryland law who had not had his civil rights restored,1 selling a Taurus .38 caliber
revolver to another individual in the parking lot of a Target Store located in Waldorf, Maryland.
ECF No. 26-1. On April 15, 2011, law enforcement officers executed a search warrant at
1103 Trunnel Lane, Accokeek, Maryland, the residence of Petitioner’s girlfriend, where

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Federal law prohibits certain persons from purchasing or possessing firearms, such as felons, certain domestic
abusers, and certain people with a history of mental illness. In accordance with 18 U.S.C. § 921(a)(20), a conviction
does not disqualify an individual from possessing firearms if the person convicted “has had civil rights restored.”
Maryland has no general restoration of rights statute but specific statutory sections addressing various civil rights.
United States v. Hassan El, 5 F.3d 726, 734 (4th Cir. 1993). Under Maryland law, gubernatorial pardon of the
felony conviction—necessary to restore jury service and firearm possession rights—would be required for a person
to fall within the civil rights exemption of § 921(a)(20). See id.

Petitioner frequently slept in the basement bedroom. Id. They located a Ruger Model P89 nine
millimeter firearm and ten rounds of ammunition hidden in the ceiling of the basement bedroom,
along with small plastic bags of cocaine base and $952. Id.
On July 13, 2011, a federal grand jury returned a two-count indictment against Petitioner
for possession of firearms and ammunition by a convicted felon in violation of
18 U.S.C. § 922(g)(1), arising from both the September 2010 firearm transaction and the
April 2011 search warrant. ECF No. 1. Petitioner pled guilty to both charges pursuant to a plea
agreement with the Government, and this Court issued a judgment of conviction on
June 25, 2012 sentencing Petitioner to a ninety-six month prison term, followed by three years of
supervised release. ECF Nos. 26, 34.
Petitioner appealed his conviction and sentence to the Fourth Circuit on
September 23, 2012, which it dismissed as untimely. ECF No. 47. Petitioner then filed this
timely pro se motion seeking to set aside, correct, or vacate his sentence pursuant to
28 U.S.C. § 2255 on June 27, 2013, ECF No. 50, which he twice moved to supplement on
August 8, 2013 and August 18, 2014.2 ECF Nos. 54, 58. The Government responded in
opposition on September 3, 2013. ECF No. 55. Construing Petitioner’s § 2255 motion and
subsequent supplements liberally, he appears to argue that his counsel was ineffective across the
pre-trial and sentencing phases.3 None of Petitioner’s claims is sufficient to entitle him to relief.

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Petitioner filed a Motion for Leave to File an Oversized Memorandum of Law, with an attached fifty-six page
memorandum on August 8, 2013, ECF No. 54, and a Motion to Amend under Federal Rule of Civil
Procedure 15(c)(2) on August 18, 2014. ECF No. 58. This Court shall construe both as supplements to Petitioner’s
§ 2255 petition to be addressed herein.
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Petitioner raises the same claims under various frameworks, e.g. prosecutorial error and violation of due process.
All of Petitioner’s claims, aside from ineffectiveness of counsel, are procedurally barred because (1) he did not raise
them on direct appeal and (2) he failed to establish cause, prejudice, or actual innocence in order to prevail over his
procedural default. See United States v. Frady, 456 U.S. 152, 165 (1982) (collateral attack is not a substitute for
appeal); United States v. Mikalajunas, 186 F.3d 490, 492–93, 495–96 (4th Cir. 1999).

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DISCUSSION
Under 28 U.S.C. § 2255, a petitioner must 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; Miller v. United States, 261 F.2d 546, 547
(4th Cir. 1958). If the § 2255 motion, along with the files and records of the case, “conclusively
show that [the petitioner] is entitled to no relief,” a hearing on the motion is unnecessary and the
claims raised in the motion may be dismissed summarily. 28 U.S.C. § 2255(b); see, e.g.,
Zelaya v. United States, No. DKC 05-0393, 2013 WL 4495788, at *2 (D. Md. Aug. 20, 2013).
In evaluating the claims of ineffective assistance of counsel, courts apply the two-prong
test set out in Strickland v. Washington, 466 U.S. 668 (1984). First, Petitioner must show that
counsel’s presentation fell “below an objective standard of reasonableness.” Id. at 668. Second,
Petitioner must show there is a reasonable probability that, absent counsel’s errors, the outcome
of the case would have been different. Id. at 669. When evaluating counsel's performance, the
Court “must indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. Here, Petitioner fails to satisfy either prong of
Strickland.
I.

Petitioner does not demonstrate that his counsel’s performance was outside the
range of reasonable professional assistance.
A. Petitioner’s conclusory claims are insufficient to establish that his counsel
was ineffective.
Petitioner’s claims for ineffective assistance fail to satisfy either prong of the Strickland

test because they are overbroad and made without factual support. Petitioner asserts that his
counsel was “disengage[d] from the adversarial process,” as demonstrated by counsel’s failure to

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(1) make adequate investigation, ECF No. 54, at 44–48; (2) obtain evidence, including Brady
material, id. at 16–22; (3) make timely motions to suppress evidence, id. at 13; (4) inform
Petitioner of his rights, id. at 7, 15; (5) warn Petitioner of waiver of rights, id.; and (6) make
preparation for trial, opting instead for plea preparation, ECF No. 50, at 9.
These conclusory allegations, without any factual framework, cannot entitle Petitioner to
relief.

Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir.1992) (“[u]nsupported, conclusory

allegations do not entitle a habeas petitioner to an evidentiary hearing”); see also United
States v. Hustead, Crim. No. WMN-09-622, Civ. No. WMN-12-3618, 2013 U.S. Dist. WL
3984613, at *2 (D. Md. July 31, 2013) (“This type of vague, speculative, or conclusory
allegations . . . clearly does not suffice to present a claim under § 2255.”); Gorham-Bey v. United
States, Civil No. RWT-11-3238, 2013 WL 715148, at *4 (D. Md. Feb. 25, 2013) (“The
conclusory nature of [petitioner’s] argument alone is sufficient for the Court to find that it fails to
show that her counsel rendered ineffective assistance.”).
Petitioner offers no factual detail to support his claim that his counsel was so deficient as
to be objectively unreasonable—instead making broad allegations that counsel failed to
adequately investigate, obtain evidence from the prosecution, and enter information on the record
without specifying what information should have been discovered or entered. ECF No. 54.
Similarly, Petitioner’s claim that his counsel failed to make timely motions to suppress evidence
does not mention what evidence should have been suppressed. Id. at 13. On the contrary, the
record shows that his counsel advocated for the suppression of Petitioner’s statements during the
execution of the search warrant in April 2011, and moved for leave to file a motion to suppress
pending investigation. ECF Nos. 17, 20. Petitioner also suggests that his counsel made the
decision to plea without his consent and without adequately advising him of the implications—

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yet he again provides no factual detail regarding any advice received, deficient or otherwise.
ECF No. 50, at 9. Accordingly, Petitioner’s unsupported claims do not establish that he was
denied effective assistance of counsel.
B. Petitioner’s claims that counsel was ineffective because he failed to correct
sentencing errors lack merit.
Counsel’s representation cannot be constitutionally deficient for failing to assert legally
meritless claims. See Moody v. Polk, 408 F.3d 141, 151 (4th Cir. 2005) (holding that counsel
was under no duty to make a meritless motion).

Petitioner’s arguments challenging his

sentencing calculations are incorrect and his counsel cannot be ineffective for failing to raise
them.
First, Petitioner incorrectly asserts that he is entitled to relief under Alleyne v. United
States, 133 S. Ct. 2151 (2013). ECF No. 54, at 24–28, 32–44. Alleyne held that “facts that
increase mandatory minimum sentences must be submitted to the jury.” Id. at 2163 (emphasis
added). Facts that affect only sentencing guideline calculations do not need to be submitted to a
jury. See id. (“Our ruling today does not mean that any fact that influences judicial discretion
must be found by a jury.”). Here, Alleyne is inapplicable as Petitioner did not face a statutory
minimum term of imprisonment. Factual determinations affecting Petitioner’s offense level and
criminal history category were properly left to the Court under United States v. Booker,
543 U.S. 220 (2005). Petitioner’s sentence was not contrary to Alleyne.
Second, Petitioner challenges the classification of two prior Maryland convictions in
2000 and 2001 as predicates for his criminal history computation: possession with intent to
distribute marijuana (“possession”) and conspiracy to distribute marijuana (“conspiracy”)—both
prohibited under Md. Code, Art. 27 § 287 (2001) (revised at Md. Code Ann., Crim. Law § 5-602

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(2009)).4 ECF No. 54, at 28–30. These arguments are also invalid. Petitioner claims that on
February 23, 2006, the Circuit Court for Charles County vacated his possession conviction. See
id. at 28–29. However, records reflect that the court suspended the balance of Petitioner’s
sentence without vacating the conviction.

ECF No. 55-1.

Petitioner also asserts that his

conspiracy conviction should not count toward his criminal history because it was based on an
Alford plea.5

ECF No. 54, at 29–30.

The Fourth Circuit settled this issue in United

States v. King, holding that a sentence based on an Alford plea counts towards a defendant’s
criminal history under the Sentencing Guidelines. 673 F.3d 274, 282–83 (4th Cir. 2012). Both
the possession and conspiracy charges count toward Petitioner’s criminal history.
Third, Petitioner challenges the classification of his prior convictions as felony controlled
substance offenses, asserting that neither charge was necessarily punishable by imprisonment for
a term exceeding one year as required to sustain a base offense level of 24.6 This argument too
lacks merit.

Under the Sentencing Guidelines, a “controlled substance offense” must be

punishable under federal or state law by imprisonment for a term exceeding one year.” U.S.
Sentencing Commission, Guidelines Manual, § 4B1.2(b) (Nov. 2011).

Here, Petitioner’s

possession and conspiracy convictions are punishable by up to five years of imprisonment under
Maryland Law, and thus fall within U.S.S.G § 4B1.2(b). See Md. Code, Art. 27 § 287 (2001)
(revised at Md. Code Ann., Crim. Law § 5-602 (2009)) (prohibiting distribution and possession

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The language of certain relevant Maryland criminal code provisions has been revised since Petitioner’s state
convictions in 2000 and 2001, but without any substantive or retroactive changes. See Md. Code Ann., Crim.
Law § Refs & Annos.
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An Alford plea is “an arrangement in which a defendant maintains his innocence but pleads guilty for reasons of
self-interest.” United States v. Taylor, 659 F. 3d 339, 347 (4th Cir. 2011) (citing North Carolina v. Alford,
400 U.S. 25, 37 (1970)). The distinguishing feature of an Alford plea is that the defendant does not confirm the
factual basis underlying his plea. United States v. Alston, 611 F.3d 219, 227 (4th Cir. 2011).
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Petitioner uses the same argument to assert that he should not have been considered a felon under § 922(g).
Petitioner was convicted of possession with intent to distribute marijuana, a felony under Maryland law, subject to
imprisonment not exceeding five years. Md. Code, Art. 27 § 286 (current version at Md. Code Ann., Crim.
Law § 5-607 (2006). Accordingly, Petitioner's conviction was “a crime punishable by imprisonment for a term
exceeding one year,” and conviction under § 922(g) was warranted.

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with intent to distribute controlled substances); Md. Code, Art. 27 § 286 (revised at Md. Code
Ann., Crim. Law § 5-607 (2006)) (establishing that a person violating § 287 is subject to
imprisonment not exceeding five years); Md. Code, Art. 27 § 38 (revised at Md. Code Ann.,
Crim. Law § 1-102 (2002)) (stating that the punishment of a person convicted of conspiracy may
not exceed the maximum punishment for the crime the person conspired to commit).
Petitioner cites numerous cases for support, none of which provides grounds for relief.
ECF No. 58. In United States v. Simmons, the Fourth Circuit held that an offense is not
punishable by a term exceeding one year of imprisonment if the defendant could not have
actually received more than one year of imprisonment for that offense based on the defendant’s
criminal history and the relevant statutory scheme. 649 F.3d 237, 243 (4th Cir. 2011). Here, for
both convictions, Petitioner could have been, and was in fact, sentenced to more than a year of
imprisonment under Maryland law. ECF No. 55-1, 55-2. At issue in Moncrieffe v. Holder, was
whether a Georgia marijuana distribution conviction qualified as an “aggravated felony” under
the Immigration and Nationality Act (“INA”), which is interpreted by terms under the Controlled
Substance Act (“CSA”). 133 S. Ct. 1678, 1680 (2012). Here, the Court calculated Petitioner’s
offense level by determining whether his prior offenses met the requirements of a “controlled
substance offense” under the Sentencing Guidelines, and any discussion regarding the INA or
CSA is irrelevant. In Descamps v. United States, the Supreme Court held that courts may not
apply the modified categorical approach7 to sentencing under the Armed Career Criminal Act
(“ACCA”) when the crime of which the defendant was convicted has a single, indivisible set of
elements. 133 S. Ct. 2276, 2286 (2013). Here, Descamps is irrelevant because the Court neither

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The modified categorical approach allows courts to look to a limited range of documents, such as indictments or
plea agreements, to assess the nature of a defendant’s prior conviction when the conviction was under a divisible
statute—one in which alternative elements could constitute an offense—and it is unclear which element played a
part in the defendant’s conviction. Descamps, 133 S. Ct. at 2283; see also United States vs. Royal, 731 F. 3d 333,
340 (4th Cir. 2013).

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sentenced Petitioner under the ACCA nor used the modified categorical approach in its
calculation.

Accordingly, Petitioner’s counsel cannot have been ineffective for not raising

meritless claims.8
II.

Even if counsel had been ineffective, Petitioner is still not entitled to relief because
he fails to make an adequate showing of prejudice.
Petitioner fails to show prejudice—that “but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694. More so, when
a conviction is based on a guilty plea, the second prong of the Strickland test requires a petitioner
to show that not only would the outcome of the case have been different but that there is “a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” United States v. Fugit, 703 F.3d 248, 259 (4th Cir. 2012)
(emphasis added) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
Petitioner has not offered any evidence or argument, beyond his own conclusory
statements, that suggest he would have not pled guilty but for counsel’s errors. See United
States v. Terry, 366 F.3d 312, 316 (4th Cir. 2004) (stating “conclusory allegations are
insufficient to establish the requisite prejudice under Strickland”). In fact, there are instances
when Petitioner suggests that he would have pled guilty regardless of his counsel’s performance,
but that he would have had a stronger plea bargaining position but for his counsel’s alleged
inefficiencies. ECF No. 54, at 46.
Further, Petitioner does not present any evidence, let alone clear and convincing
evidence, that would allow this Court to disregard the statements he made under oath at his plea
hearing. A defendant’s representations at a plea hearing carry a strong presumption of verity and

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Petitioner also argues that his counsel was ineffective for failing to ensure his presence at the Grand Jury
proceedings and to challenge the constitutionality of his indictment. See ECF No. 54, at 8–13, 34–44. These claims
are easily dismissed, as Petitioner is not entitled to be present at the Grand Jury proceedings under Federal Rule of
Criminal Procedure 6 and the indictment is sufficient under Rule 7.

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a “formidable barrier in any subsequent collateral proceedings.”

Blackledge v. Allison,

431 U.S. 63, 74 (1977). Absent clear and convincing evidence to the contrary, a defendant is
bound by the representations he made under oath during a plea colloquy. See Fields v. Attorney
Gen. of Md., 956 F.2d 1290, 1299 (4th Cir. 1992) (finding that because the petitioner did not
present evidence to suggest that his representations during the plea hearing were untruthful or
involuntary, he was bound by the sworn statements).
During the plea hearing, Petitioner answered in the affirmative when asked if he was
satisfied by his counsel’s representation and advice. ECF No. 41, at 5–6. Petitioner further
verified that he had discussed the charges in the indictment with his attorney and that he had
reviewed, signed, and understood the plea agreement.

Id.

Petitioner made the same

representations when he signed the plea agreement on March 21, 2012. ECF 26, at 8. No
assertion in Petitioner’s § 2255 motion reaches the high, clear, and convincing standard
necessary to cast doubt on his stated satisfaction with counsel that he made during his plea
hearing. Counsel’s performance cannot be considered constitutionally deficient under a Sixth
Amendment, § 2255 motion.
CERTIFICATE OF APPEALABILITY
Petitioner may not appeal this Court’s denial of relief under 28 U.S.C. § 2255 unless it
issues a certificate of appealability.
(4th Cir. 2007).

United States v. Hardy, 227 Fed. Appx. 272, 273

A certificate of appealability will not issue unless Petitioner has made a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c); Hardy,
227 Fed Appx. at 273. “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

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debatable.” United States v. Riley, 322 Fed. App’x 296, 297 (4th Cir. 2009). This Court has
assessed the claims in Petitioner’s motion to vacate his sentence on the merits and found them
deficient. No reasonable jurist could find merit in any of Petitioner’s claims, and thus no
certificate of appealability shall issue.
CONCLUSION
The Court finds that all Petitioner’s claims are either procedurally barred, or have failed
to satisfy the Strickland two-prong test establishing that his counsel’s performance was deficient
or that but for counsel’s alleged errors, there is a reasonable probability that the outcome would
have been different. Petitioner’s motion will be denied and no certificate of appealability shall
issue. Accordingly, it is, this 1st day of July, 2015, by the United States District Court for the
District of Maryland,
ORDERED, that Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence under
28 U.S.C. § 2255 (ECF Nos. 50, 54, 58) is hereby DENIED; and it is further
ORDERED, that a certificate of appealability SHALL NOT BE ISSUED; and it is
further
ORDERED, that the Clerk is hereby DIRECTED to mail a copy of this Memorandum
Opinion and Order to Petitioner; and it is further
ORDERED, that the Clerk is hereby DIRECTED to close Civil Action No.
RWT-13-1893.

/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE

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