Hudson v. USA - 2255
MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 5/31/2017. (C/M 5/31/2017 aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA
Civil No. 15-00018
(Related to Criminal No. 12-00397)
Brian Hudson, pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence under
28 U.S.C. § 2255. ECF No. 38. The Court has considered the Motion and the Government’s
Opposition. For the reasons described below, the Court DENIES the Motion.
FACTUAL AND PROCEDURAL BACKGROUND
Between June 2010 and August 2011, Hudson was part of a conspiracy to distribute and
possess with intent to distribute five kilograms or more of a mixture or substance containing
cocaine. Criminal No. PJM 12-397, ECF No. 14-1 at 1. During his arrest, he rammed several
police vehicles with his car, then tried to flee on foot before finally being subdued. Id. at 2.
On July 20, 2012, Hudson pled guilty to a one-count Information, charging him with the
conspiracy. ECF Nos. 14, 15. Allen Orenberg, Esquire, represented him during the course of plea
negotiations and at the plea hearing. ECF No. 38 at 11. On January 3, 2014, Judge Alexander
Williams, Jr. of this Court1 sentenced Hudson to a term of 120 months’ imprisonment followed
by five years of supervised release. ECF No. 34. Gary Proctor, Esquire, represented Hudson at
sentencing. ECF No. 54 at 2:9. Hudson’s prison sentence was subsequently reduced to 96
months pursuant to an 18 U.S.C. § 3582(c)(2) motion. ECF No. 59.
Upon Judge Williams’s retirement, the case was reassigned to the undersigned.
On January 5, 2015, Hudson filed the current 28 U.S.C. § 2255 motion. ECF No. 38. He
raises six grounds in support of this Motion:
(1) Orenberg, he says, provided ineffective assistance by poorly advising Hudson as to
the impact of the charged drug quantity on his potential sentence and by failing to file
appropriate pre-trial motions;
(2) Orenberg also provided ineffective assistance by failing to investigate critical
evidence and failing to argue that Hudson was only responsible for a lesser drug amount
than the full amount attributed to the conspiracy;
(3) Judge Williams imposed an illegal sentence when he held Hudson responsible for all
the foreseeable drug sales of his co-conspirators;
(4) Hudson’s plea was not entered into freely and voluntarily because he was misled by
Orenberg and acted under duress;
(5) Hudson is actually innocent because the drug amount for which he was held liable
was never appropriately established; and
(6) Hudson should not have been sentenced above the mandatory minimum pursuant to
United States v. Alleyne, 133 S.Ct. 2151 (2013) because a jury did not find him guilty of
the drug quantity that enhanced his sentence.2
These claims can be grouped into several categories: two relate to ineffective assistance
of counsel (Grounds 1 and 2), one alleges that Hudson’s guilty plea was unknowing and
involuntary (Ground 4), two allege that his sentencing was erroneous because it took into
account for drugs sold by his co-conspirators (Grounds 3 and 5), and one claim is that the
sentencing court did not abide by United States v. Alleyne (Ground 6).
The Court notes that Hudson was, in fact, sentenced only to the mandatory minimum sentence. See ECF No. 54 at
A. INEFFECTIVE ASSISTANCE OF COUNSEL (GROUNDS 1 and 2)
Hudson argues that Orenberg’s representation constituted ineffective assistance of
counsel with respect to his judgment as to which investigative avenues to pursue, his decision not
to file pretrial motions, and his failure to dispute the drug quantity for which Hudson was
deemed responsible, precluding Hudson from later obtaining sentencing reductions.3
To succeed on a claim of ineffective assistance of counsel, a petitioner must show his or
her counsel’s performance was below “an objective standard of reasonableness,” Strickland v.
Washington, 466 U.S. 668, 688 (1984), according to “prevailing professional norms.” Id. at 686.
The errors must be so serious “that counsel was not functioning as the ‘counsel’ guaranteed” in
the Sixth Amendment. Id. at 687.
Orenberg’s decision not to investigate every possible defense, file certain pre-trial
motions or dispute the quantity of drugs charged was not unreasonable. See Emmett v. Kelly, 474
F.3d 154, 161 (4th Cir. 2007) (“[Strickland does not] impose a constitutional requirement that
counsel uncover every scrap of evidence that could conceivably help their client . . .”)(quoting
Tucker v. Ozmint, 350 F.3d 433, 442 (4th Cir.2003)) (internal quotation marks omitted).
Furthermore, when examining an ineffective assistance of counsel claim, the Court “examine[s]
whether counsel's performance was reasonable under prevailing professional norms . . . with a
deferential eye, and  presumes that challenged acts are likely the result of a sound trial
strategy.” Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994). The Court finds that Orenberg
conformed to the applicable professional norms in negotiating the plea agreement for Hudson.
Notably, Hudson did obtain a sentencing reduction pursuant to 18 U.S.C. 3583(c)(2), which reduced his term of
imprisonment from 120 months to 96 months. See ECF No. 59.
However, even if Hudson were successful in demonstrating error, he must also
demonstrate prejudice by a showing that “but for counsel’s unprofessional errors, the result of
the proceeding would have been different, Strickland, 466 U.S. at 694.
unprofessional errors must have resulted in the guilty plea, meaning that absent them, the case
would have gone to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Orenberg negotiated a plea deal in which the Government agreed to abandon an
enhancement based on Hudson’s prior drug conviction, which would have doubled Hudson’s
mandatory minimum sentence from ten to twenty years.4 It also avoided a trial at which
conviction was highly likely due to the substantial evidence that Government had against him,
including a wiretap and a controlled purchase of drugs from him. In addition, Hudson’s
mandatory minimum sentence was below the U.S. Sentencing Guidelines Manual’s range for his
offense level and criminal history, meaning that Judge Williams ultimately departed downward
in sentencing him – further evidence of lack of prejudice. See ECF No. 54 at 8:13. Finally,
Hudson admitted at his plea colloquy that he was satisfied with Orenberg’s representation, ECF
No. 56-1 22:3, something he cannot casually undo by a contrary statement after the fact. See
United States v. Lemaster, 403 F.3d 216, 221–22 (4th Cir. 2005).
Given the positive overall results Orenberg achieved, Hudson has failed to demonstrate
that Orenberg’s assistance was deficient, and, even if it was, that he was in any way prejudiced
thereby. The Court rejects Hudson’s ineffective assistance of counsel claims.
During the plea hearing, Judge Williams pointed out that “as part of the plea negotiations here  the government
has given up whatever right they had to argue that some previous conviction in 2006 would be a predicate offense
that would enhance your mandatory minimum from 10 to 20 [years]. ECF No. 14:21-23.
B. UNKNOWING OR INVOLUNTARY PLEA (GROUND 4)
Hudson says his guilty plea was unknowing and involuntary because he did not
understand the substance of the crimes to which he was pleading guilty or the implications of
A defendant must “voluntarily and understandingly enter his plea of guilty.” Boykin v.
Alabama, 395 U.S. 238, 244 (1969). However, “in-court representations from the defendant are
treated as conclusive with regard to the validity of the plea and may not be controverted later
absent some compelling reason . . . ” Savino v. Murray, 82 F.3d 593, 603 (4th Cir. 1996). In this
case, the Court, after answering a question posed by Hudson, asked “[i]s there any unreadiness of
anything, because I’m about ready to accept this guilty plea? Do you have anything else you
need to bring to my attention?” ECF No. 56-1 33: 13-15. Hudson answered “No, sir.” Id. at
33:16. The Court then concluded that Hudson’s plea was knowing and voluntary.
This exchange with Judge Williams belies any of Hudson’s contentions to the contrary.
Hudson’s claim that his plea was unknowing and involuntary is rejected.
C. ILLEGAL SENTENCE (GROUNDS 3 AND 5)
Hudson next claims that his sentence was illegal because, in calculating the guideline
range, the Court considered the amount of the foreseeable drug sales by the whole conspiracy,
without finding that Hudson himself had agreed to make each of the sales. This, he argues, was a
necessary finding, suggesting that he should have been liable for a lesser amount.
These claims are procedurally barred. Claims not raised on direct appellate review cannot
be heard on collateral review unless a petitioner can show that his failure to raise claims earlier
in the process was for cause and that it created actual prejudice. See U.S. v. Landrum, 93 F.3d
122, 124-25 (4th Cir. 1996). Collateral attack is not a substitute for appeal. U.S. v. Frady, 456
U.S. 152, 165 (1982). While, as was the case here, a petitioner has waived his right to appeal
pursuant to a plea agreement, “he is not precluded from filing a petition for collateral review;
but he is precluded from raising claims of the sort that could have been raised on appeal.” U.S.
v. Linder, 552 F.34, 391, 396-97 (4th Cir. 2009) (citing Brian R. Means, Fed. Habeas
Practitioner Guide, Jurisdiction ¶ 1.23.0 (2006/2007) (emphasis in original). This particular
claim could have been.
Hudson appears to be trying to make out a claim of actual innocence claim, representing
that he is innocent of drug sales executed by his co-conspirators that he did not specifically agree
to. Despite this, he pled guilty to that full amount. In the plea agreement, the Government
outlined that his base offense level was calculated to be 32 “because as least 5 kilograms of
cocaine were foreseeable to the Defendant’s involvement in the offense.” ECF No. 14 at 4. As
part of his plea agreement, Hudson agreed to an attached Statement of Facts, including that
“[b]etween in or about June 2010, and in or about August 2011, BRIAN HUDSON a/k/a/
“COUNTY (“HUDSON”) combined, conspired, confederated and agreed with Philip Whitehurst
(“Whitehurst”) and others to distribute and possess with intent to distribute 5 kilograms or more
of a mixture or substance containing cocaine.” ECF No. 14-1. Beyond that, of course, the nature
of a conspiracy involving drugs or otherwise is that a co-conspirator is liable for all the
foreseeable acts of his co-conspirators, whether he participates or even has actual knowledge of
those acts. Pinkerton v. United States, 328 U.S. 640, 647, 66 S. Ct. 1180, 1184, 90 L. Ed. 1489
(1946)(“[t]hat principle is recognized in the law of conspiracy when the overt act of one partner
in crime is attributable to all.); United States v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010).
Hudson does not, nor can he argue “cause” or “actual prejudice,” based on counsel’s
supposed failure to challenge the attributed amounts. His claim of actual innocence is
groundless. He was part of the conspiracy, even if not the prime mover and, by law, he is
responsible for all the foreseeable overt acts his confederates engaged in.
D. ALLEYNE CLAIM
Finally, Hudson argues that he is entitled to relief pursuant to Alleyne v. United States,
133 S. Ct. 2151, 2155 (2013), which provides that when “[m]andatory minimum sentences
increase the penalty for a crime, any fact that increases the mandatory minimum is an ‘element’
that must be submitted to the jury.”
Alleyne does not apply to this case. The dispositive fact is that Hudson was not sentenced
above the applicable mandatory minimum. In addition, contrary to his assertions, the Fourth
Circuit has found that the Supreme Court has not made Alleyne retroactive “to matters raised on
collateral review.” United States v. Surratt, 797 F.3d 240, 249 (4th Cir. 2015), reh'g en banc
granted (Dec. 2, 2015); See also Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013);
Smith v. United States, No. CIV.A. PWG-13-3354, 2013 WL 6222988, at *1 (D. Md. Nov. 26,
2013). In his plea agreement Hudson also admitted to the quantity of drugs subjecting him to a
mandatory minimum. It was not necessary for a jury to find this as an element of his crime which
he admitted. Hudson’s Alleyne claim is denied.
Rule 11(a) under the Federal Rules Governing 28 U.S.C. § 2255 requires the Court to
“issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”
Fed.R.Gov. § 2255 Proc. 11(a). A certificate of appealability will not issue absent “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 327 (2002); Slack v. McDaniel, 529 U.S. 473, 474 (2000). The Court has
reviewed pleadings and the record in this case. It finds that Hudson has not made the requisite
For these reasons, Hudson’s Motion to Vacate, Set Aside, or Correct Sentence, ECF No.
38 is DENIED.
A separate Order will ISSUE.
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
May 31, 2017
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