McGriff v. USA - 2255
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 03/19/2014. (bas, Deputy Clerk)(c/m on 3-19-14 bca)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DANA VINCENT MCGRIFF
Civil Action No. DKC 13-2021
Criminal No. DKC 12-202
UNITED STATES OF AMERICA
Presently pending and ready for resolution in this case is
the motion of Petitioner Dana Vincent McGriff (“Mr. McGriff” or
under 28 U.S.C. § 2255 (ECF No. 25).1
The issues have been fully
Petitioner’s motion will be granted in part.
Pursuant to a written plea agreement filed on April 18,
2012, Petitioner waived indictment and knowingly and voluntarily
possession with intent to distribute 100 grams or more of heroin
in violation of 21 U.S.C. § 841(a)(1), and with being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g).
July 9, 2012, the undersigned sentenced Petitioner to 100 months
All citations to electronic court filings refer to the
docket in the criminal case.
of imprisonment, followed by four years of supervised release.
Instead, on July 12, 2013, Petitioner filed the instant Section
(ECF No. 25).2
Petitioner raises four grounds for
appeal: (1) ineffective assistance of counsel due to counsel’s
failure to file a direct appeal despite Petitioner’s request
that she do so; (2) ineffective assistance of counsel due to
counsel’s failure to move to suppress the firearm arm recovered
sentencing based upon possession of 400 grams of heroin, instead
information; and (4) the improper application at sentencing of a
possessing a firearm in connection with a drug offense.
ECF No. 25).
The Government responded on December 16, 2013 (ECF
No. 37), and Petitioner replied (ECF No. 39).
Standard of Review
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
Petitioner filed a memorandum in support of his habeas
petition on August 12, 2013. (ECF No. 27).
in excess of the maximum authorized by law.”
If the Section
conclusively shows that 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 28 U.S.C. § 2255(b).
Failure to File a Direct Appeal
because his attorney did not file a notice of appeal to the
United States Court of Appeals for the Fourth Circuit despite
Petitioner’s request that she do so.3
Under Rule 4(b)(1) of the
Federal Rules of Appellate Procedure, Petitioner had fourteen
days from the entry of judgment to file a notice of appeal.
Petitioner’s counsel did not file a notice of appeal within that
The United States Supreme Court has held that an
attorney’s failure to file an appeal, when requested by her
client to do so, constitutes per se ineffective assistance of
See, e.g., Jones v. Barnes, 463 U.S. 745, 751 (1983)
(noting that the “fundamental decision” of whether to appeal
rests with the defendant); United States v. Peak, 992 F.2d 39,
42 (4th Cir. 1993) (holding that a court must vacate the original
Petitioner was represented by LaKeytria Felder with the
Office of the Federal Public Defender for the District of
judgment and enter a new one from which an appeal can be taken
if counsel was requested to appeal and failed to do so).
Petitioner alleges that he instructed counsel to file an
appeal following his sentencing on July 9, 2012.
He states that
after sentencing, he turned to his attorney and asked if he can
appeal the sentence.
According to Petitioner, his attorney then
asked whether that’s what he wanted to do and to think about it
and let her know.
(ECF No. 27, at 3).
Petitioner asserts that
The Government responds that “[r]ather than conducting
whether Petitioner did, in fact, direct his attorney to file an
appeal, this Court should simply vacate the judgment and enter a
new judgment to allow Petitioner to note an appeal.”
37, at 3).
The Government states that if Petitioner is able to
file a direct appeal, the undersigned “should not address the
merits of his [two] claims regarding his sentencing,” because
such claims will be considered if and when Petitioner files a
(Id. at 4).
Petitioner’s motion to vacate is
sentencing and seeks relief due to his counsel’s failure to file
a timely notice of appeal.
Accordingly, the judgment in the
original case (ECF No. 20) will be vacated and the Clerk will be
ordered to enter an amended judgment, identical in all respects
counsel based on failure to move to suppress the firearm will be
Failing to Move to Suppress the Firearm
Petitioner argues that his attorney rendered ineffective
assistance because she failed to move to suppress the firearm
that was recovered in Petitioner’s home during the course of the
execution of a search warrant.
He states that his attorney
Petitioner’s drug trafficking operation, but had proof [that]
the firearm belong[ed] to Petitioner’s wife legally.”
27, at 6).
Claims of ineffective assistance of counsel are governed by
Strickland, 466 U.S. at 687.
To demonstrate actual prejudice,
Petitioner must show there is a “reasonable probability that,
petitioner who pleads guilty has an especially high burden in
establishing an ineffective assistance claim.
Petitioner cannot show that his attorney’s performance fell
Government points out, the firearm was recovered in Petitioner’s
bedroom closet during the execution of a search warrant.
seizure of “firearms, including but not limited to, handguns,
pistols, revolvers, rifles, shotguns, machine guns, ammunition
and any other weapons.”
(ECF No. 37-5, at 2).
execution sufficient to give rise to suppression, and certainly
nothing that would overcome the good faith exception to the
United States v. Leon, 468 U.S. 897 (1984).
He has not shown that counsel’s failure to file a motion to
suppress was error.
“Where, as here, a Sixth Amendment claim rests on trial
actual prejudice requires the petitioner to establish that the
probability that the verdict would have been different absent
the excludable evidence.”
Bone v. Polk, 441 F.App’x 193, 198
(4th Cir. 2011); Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)
(“Where defense counsel’s failure to litigate a Fourth Amendment
ineffectiveness, the defendant must also prove that his Fourth
Amendment claim is meritorious and that there is a reasonable
probability that the verdict would have been different absent
the excludable evidence.”).
Petitioner fails to present any
evidence that he would have prevailed at a suppression hearing.
See Bass v. United States, Criminal Action No. RDB-08-496, 2013
WL 2635235, at *6 (D.Md. June 11, 2013) (denying ineffective
assistance of counsel claim where the agreed facts reflected a
search incident to a lawful arrest and petitioner failed to show
he would have prevailed at a suppression hearing).
irrelevant to the constitutionality of the search pursuant to
Based on the foregoing, Petitioner’s Section 2255
petition will be denied to the extent he asserts ineffective
assistance of counsel based on counsel’s failure to move to
suppress the firearm.
D. Certificate of Appealability
claim based on the failure to move to suppress the firearm will
certificate of appealability.
A certificate of appealability is
applicant has made a substantial showing of the denial of a
28 U.S.C. § 2253(c)(2).
Where the court
denies a petitioner’s motion on its merits, a prisoner satisfies
debatable or wrong.
See Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Petitioner does not satisfy the above standard.
will decline to issue a certificate of appealability on the
issues which have been resolved against Petitioner.
For the foregoing reasons, the motion to vacate filed by
separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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