McGriff v. USA - 2255

Filing 2

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
:
v.

:

Civil Action No. DKC 13-2021
Criminal No. DKC 12-202

:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case is
the motion of Petitioner Dana Vincent McGriff (“Mr. McGriff” or
“Petitioner”)

to

vacate,

set

aside,

or

correct

his

sentence

under 28 U.S.C. § 2255 (ECF No. 25).1

The issues have been fully

briefed,

no

and

necessary.

the

court

Local

Rule

now

rules,

105.6.

For

hearing

the

being

following

deemed

reasons,

Petitioner’s motion will be granted in part.
I.

Background
Pursuant to a written plea agreement filed on April 18,

2012, Petitioner waived indictment and knowingly and voluntarily
pled

guilty

to

a

two-count

information

charging

him

with

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).

On

July 9, 2012, the undersigned sentenced Petitioner to 100 months
1

All citations to electronic court filings refer to the
docket in the criminal case.

of imprisonment, followed by four years of supervised release.
(ECF

No.

18).

Petitioner

did

not

file

a

direct

appeal.

Instead, on July 12, 2013, Petitioner filed the instant Section
2255 motion.

(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
during

a

search

of

Petitioner’s

residence;

(3)

improper

sentencing based upon possession of 400 grams of heroin, instead
of

100

grams,

which

was

the

amount

charged

in

the

criminal

information; and (4) the improper application at sentencing of a
two-level

enhancement

under

the

Sentencing

Guidelines

possessing a firearm in connection with a drug offense.
ECF No. 25).

for
(See

The Government responded on December 16, 2013 (ECF

No. 37), and Petitioner replied (ECF No. 39).
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
or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was

2

Petitioner filed a memorandum in support of his habeas
petition on August 12, 2013. (ECF No. 27).
2

in excess of the maximum authorized by law.”
2255

motion,

along

with

the

files

and

If the Section

records

of

the

case,

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).

III. Analysis
A.

Failure to File a Direct Appeal

Petitioner

asserts

ineffective

assistance

of

counsel

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
time period.

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
counsel.

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

3

Petitioner was represented by LaKeytria Felder with the
Office of the Federal Public Defender for the District of
Maryland.
3

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.
he

subsequently

(Id.).
an

(ECF No. 27, at 3).
told

counsel,

“yeah,

Petitioner asserts that
I

do

want

to

appeal.”

The Government responds that “[r]ather than conducting

evidentiary

hearing

to

resolve

any

factual

dispute

about

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).

(ECF No.

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
direct appeal.
granted

to

the

(Id. at 4).
extent

he

Petitioner’s motion to vacate is
challenges

determinations

made

at

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
4

to

the

earlier

Petitioner’s

judgment

remaining

except

claim

for

for

the

date

ineffective

of

entry.

assistance

of

counsel based on failure to move to suppress the firearm will be
considered.
B.

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.
should

have

offered

moved

any

to

proof

suppress
that

He states that his attorney
because
weapon

the

“the

government

played

any

never

role

in

Petitioner’s drug trafficking operation, but had proof [that]
the firearm belong[ed] to Petitioner’s wife legally.”

(ECF No.

27, at 6).
Claims of ineffective assistance of counsel are governed by
the

well-settled

standard

Strickland

v.

Strickland

standard,

attorney’s

performance

reasonableness

adopted

Washington,

and

the

that

466

by

U.S.

he

Strickland, 466 U.S. at 687.

below

Supreme

668

(1984).

must

petitioner

fell

the

show

an

suffered

in

Under

the

that

his

both

objective
actual

Court

standard

prejudice.

of
See

To demonstrate actual prejudice,

Petitioner must show there is a “reasonable probability that,
but

for

counsel’s

proceeding

would

unprofessional
have

been

errors,

different.”
5

the
Id.

result
at

of

the

694.

A

petitioner who pleads guilty has an especially high burden in
establishing an ineffective assistance claim.
Petitioner cannot show that his attorney’s performance fell
below

an

objective

standard

of

reasonableness.

As

the

Government points out, the firearm was recovered in Petitioner’s
bedroom closet during the execution of a search warrant.
search

warrant

for

Petitioner’s

apartment

expressly

The

covered

seizure of “firearms, including but not limited to, handguns,
pistols, revolvers, rifles, shotguns, machine guns, ammunition
and any other weapons.”
not

pointed

to

any

(ECF No. 37-5, at 2).

asserted

defect

in

the

Petitioner has
warrant

or

its

execution sufficient to give rise to suppression, and certainly
nothing that would overcome the good faith exception to the
suppression remedy.

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
counsel’s

failure

to

move

to

suppress

evidence,

establishing

actual prejudice requires the petitioner to establish that the
underlying

claim

is

meritorious

and

there

is

a

reasonable

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
6

claim

competently

is

the

principal

allegation

of

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).
argument

that

the

firearm

legally

belonged

Petitioner’s

to

his

wife

is

irrelevant to the constitutionality of the search pursuant to
the warrant.

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
Because

Petitioner’s

ineffective

assistance

of

counsel

claim based on the failure to move to suppress the firearm will
be

denied,

the

undersigned

certificate of appealability.
a

“jurisdictional

is

required

to

issue

or

deny

a

A certificate of appealability is

prerequisite”

to

an

appeal

“only

if

the

applicant has made a substantial showing of the denial of a
7

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

undersigned

Petitioner does not satisfy the above standard.

finds

that

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, the motion to vacate filed by

Petitioner

will

be

granted

in

part

and

denied

in

part.

separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

8

A