Shepperson v. USA-2255

Filing 2

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 6/23/2016. (jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

FILED
• U.S. DISTRICT COURT
DISTRICT OF MARYLAND
101b JUN

23 A 351 •

CLERK'S OFFICE
AT GREENBELT

CHINUA SHEPPERSON,
Petitioner,
V.

Civil Action No.: GJH-15-1686
Related Criminal No.: 09-598-G1H-17

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION
On June 5, 2015, Petitioner Chinua Shepperson's Motion to Vacate, Set Aside, or
Correct his Sentence ("Motion to Vacate") was docketed in the above-captioned matter.'
ECF No. 771. The Government has filed a response in opposition to the Motion to Vacate
and Petitioner has filed his reply. No hearing is necessary to resolve the Motion. See 28
U.S.C. § 2255(b). For the reasons that follow, Petitioner's Motion will be denied.
I. BACKGROUND
On October 27, 2010, Petitioner was charged in a superseding indictment with
multiple counts including conspiracy to participate in racketeering activity (Count 1),
murder in aid of racketeering (Count 6), interference with commerce by robbery (Count 7),
using and carrying a firearm during and in relation to a crime of violence (Count 8), and

Petitioner has also filed a Motion for Leave Requesting Permission to File Exhibits. ECF No. 775. The
Government has not responded to this Motion, and rather has substantively responded to the exhibits in its
response in opposition to Petitioner's Motion to Vacate. See ECF No. 789. Accordingly. Petitioner's Motion
for Leave will be granted. See ,V1iibang v. United States, No. CIV.A. DKC 06-1838, 2011 WL 3511078, at
*3 (D. Md. Aug. 9, 2011) (allowing petitioner to supplement record with evidence buttressing claims raised
in initial § 2255 petition where Government did not oppose motion to supplement).

murder resulting from the use and carrying of a firearm during and in relation to a crime of
violence (Count 9). See ECF No. 377; ECF No. 459-1.2
The case was tried before a jury in March 2011. At trial, the evidence consisted of,
among other things, the testimony of several cooperators, including one by the name of
Roddy E. Paredes, Jr. Paredes testified, in relevant part, that he and the Petitioner were
members of a gang called the "Latin Kings,- and that on or around April 25 2008, they,
along with other Latin King members including one named Erick Roman, concocted a
plan to rob and kill an individual who had offered to loan them drugs

John Montoya.

ECF No. 560 at 12, 29-30. According to Paredes, he introduced Petitioner to Montoya as
the buyer, and then Petitioner took out a gun—that Paredes had given him to use—and
Paredes instructed Montoya to hand over the drugs and everything else in his pocket. Id. at
32, 34-35. After Montoya did so, Petitioner shot and killed him. Id. at 32.
Paredes further testified that, after the shooting, he threw Montoya's keys and cell
phone into a creek, and, when the group reconvened at Parades' apartment, Roman took
the drugs they stole from Montoya, while Petitioner took Parades' gun to get rid of it. M
at 33, 52. Roman sold the drugs and gave the others some of the proceeds. Id. at 52.
On March 14, 2011, the jury returned a guilty verdict on each of the counts before
it. ECF No. 485; see also ECF No. 519. Petitioner was sentenced to life imprisonment on
Counts 1,6, and 9, a concurrent 240-month term of imprisonment on Count 7, and a
consecutive 120-month term of imprisonment on Count 8. ECF No. 519. Petitioner
unsuccessfully appealed his sentence to the United States Court of Appeals for the Fourth
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Upon a joint motion to dismiss, multiple other counts of the superseding indictment were dismissed before trial.
ECF No. 459.

3 Pin cites to documents filed on the Court's electronic filing system (CM/ECF) refer to the page numbers generated
by that system.

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Circuit, see ECF No. 743, and Petitioner's sentence became final on May 19, 2014 when
the United States Supreme Court denied his petition for writ of certiorari, Shepperson v.
United States, 134 S. Ct. 2314 (2014).
In his Motion to Vacate, Petitioner primarily argues that he is "factually innocent of
counts including murder." ECF No. 771 at 3. Specifically, Petitioner contends that Roman
has new information that could exculpate Petitioner. Petitioner further notes that his
attorney refused to speak directly with Roman before trial because Roman was represented
by counsel, ECF No. 771-1 at 2, and that his attorney informed him before trial that if
Petitioner did not cooperate with the Government, he would be charged for Montoya's
murder, ECF No. 771-1 at 1. In support of his Motion, Petitioner submitted his own
affidavit in which he asserts his innocence, a handwritten letter from Roman to Petitioner,
as well as reports from a private investigator who was hired to investigate Petitioner's
"legal matters" and "to develop an investigative strategy aimed at generating new
information regarding the murder of . . Montoya." ECF No. 775-2 at 2; see also ECF No.
771-1; ECF No. 775-3; ECF No. 792.
In his letter, Roman asserts, among other things, that he has "new evidence in the
case," specifically, "people that saw the murder and can testify to it in court . . ECF
No. 775-3 at 2. He further indicates that there were witnesses to the murder who "saw it
all, and it was not [Petitioner] who they saw." Id. at 3. Roman suggests that Paredes lied
at trial "to avoid a life sentence [or] maybe death row." Id. In the investigator's reports,
however, Roman is described as a "fairly unscrupulous character who, at a minimum,
suffers from delusions of grandeur and desires to be treated with greater regard than his
stature requires," and that "much of what ... Roman says about other witnesses and

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vindicating information for [Petitioner] are either embellishments at least or bold-faced
lies at most and finding third party corroboration in a subsequent investigation would be
difficult, bordering on impossible.- ECF No. 775-2 at 5. Nevertheless, according to the
investigator, "[v]arious individuals with knowledge of this case [including] relatives,
friends, associates and neighbors speculate that [Petitioner] did not murder... Montoya"
but that "no one has been willing to share ... the name of an actual witness for fear of
safety or reprisal.- ECF No. 792-1 at 1. The investigator further reported that "there are
many with knowledge of this case who believe . .. Paredes lied in order to gain favorable
treatment or reduced sentencing, id. at 2, a suspicion supported by the fact that Paredes
testified at trial that he did not have a problem lying to the government agents if he stood
to benefit. See ECF No. 560 at 110.
II. DISCUSSION
In order to be entitled to relief 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(a); see also United &cites v. Moore, 993 F.2d 1541 (4th Cir. 1993)
(unpublished) (citing Vanater v. Boles, 377 F.2d 898 (4th Cir. 1967)). A pro se petitioner
is, of course, entitled to have his arguments reviewed with appropriate consideration. See
Gordon v. Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978). Where, however. a § 2255
petition, along with the files and records of the case, conclusively shows the petitioner is

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not entitled to relief, a hearing on the motion is unnecessary and the claims raised therein
may be dismissed summarily.4 28 U.S.C. § 2255(b).
Petitioner's principal claim is one of actual innocence. "The [United States]
Supreme Court has never squarely held that actual innocence is a viable independent
collateral claim.- Higgs v. United States, 711 F. Supp. 2d 479, 501 (D. Md. 2010); see also
Herrera v. Collins, 506 U.S. 390, 417, 113 S. Ct. 853 (1993) ("We may assume, for the
sake of argument in deciding this case, that in a capital case a truly persuasive
demonstration of 'actual innocence made after trial would render the execution of a
defendant unconstitutional, and warrant federal habeas relief ... .-); United States v.
MacDonald, 32 F. Supp. 3d 608. 705-06 (E.D.N.C. 2014) (emphasis in original) (footnote
omitted) ("The United States Supreme Court has never explicitly recognized a
freestanding actual innocence claim, although it has recognized the possibility of such a
claim

If any such freestanding claim of actual innocence exists, however, "the

threshold showing would 'necessarily be extraordinarily high.' Higgs, 711 F. Supp. 2d at
501 (quoting Herrera, 506 U.S. at 417); see also Wilson v. Greene, 155 F.3d 396, 404 (4th
Cir. 1998) (citations omitted) ("[Freestanding] [c]laims of actual innocence . . should not
The Government argues that Petitioner's Motion to Vacate is untimely because it was docketed beyond the oneyear statute of limitations imposed by 28 U.S.C. § 2255ff). See ECF No. 789 at 5-7. Petitioner's Motion to Vacate is
dated May 11, 2015—four days prior to the expiration of the one-year limitations period running from the date
Petitioner's sentence became final. See 28 U.S.C. § 2255(00); see also ECF No. 771 at 12. Under the "prison
mailbox rule," the date that a document is deposited into the prison mailing system is considered the date of filing.
United States v. Peny, 595 F. App'x 252, 253 n.1 (4th Cir. 2015) (citing Houston v. Lack, 487 U.S. 266, 276, 108
SQ. 2379 (1988)). Absent any evidence to the contrary, the Court will presume that the date the Motion to Vacate
was signed and dated was the date it was delivered to prison authorities. See, e.g., .leffiles v. United States, 748 F.3d
1310, 1314 (11th Cir.) ("The burden is on the Government to prove the motion was delivered to prison
authorities on a date other than the date the prisoner signed it."), cert. denied, 135 S. Ct. 241(2014); Siiiith y
United States, No. CR ELH-08-0086, 2016 WL 1321218, at *1 n.2 (D. Md. Apr. 4,2016) (assuming that
petition under § 2255 was delivered to prison authorities on the date it was signed and dated). Although the
Government contends that the prison mailbox rule should not apply because the envelope containing Petitioner's
•
Motion was dated June 1,2015, see ECF No. 789-1, the Government has not pointed to any evidence that Petitioner
did not, in fact, submit his Motion to Vacate to prison authorities the date it was signed. See e.g., „leffile.s., 748 F.3d
at 1314 (noting that prison logs or other records constitute evidence that could contradict the signing date).
Accordingly, the Court deems Petitioner's Motion to Vacate as timely filed.
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be granted casually."). Thus, to be entitled to relief, the United States Court of Appeals for
the Fourth Circuit has suggested that a petitioner "would at the very least be required to
show that based on proffered newly discovered evidence and the entire record before the
jury that convicted him, 'no rational trier of fact could [find] proof of guilt beyond a
reasonable doubt." Hunt v. McDade, 205 E.3d 1333 (4th Cir. 2000) (unpublished)
(quoting Herrera, 506 U.S. at 429 (White, J., concurring)).
Here, the evidence Petitioner has submitted in support of his Motion to Vacate is
wholly generic and speculative. Petitioner contends that Roman has provided new
information and that, had Roman testified at Petitioner's trial, the jury would have had
reason to disbelieve Parades' testimony. See ECF No. 790 at 4. But Roman's vague
assertions that other unspecified individuals "saw the murder and can testify ... in court"
that Petitioner was not the one who committed the murder, BCE No. 775-3 at 2-3, are
insufficient for Petitioner to satisfy his burden on a freestanding claim of innocence.
Additionally, although Petitioner's private investigator indicates that "[v]arious
individuals with knowledge of this case ... .peculate that [Petitioner] did not murder .
Montoya," ECF No. 792-1 at 1 (emphasis added), such speculation alone cannot support
Petitioner's Motion to Vacate. Petitioner has not presented any evidence that would lead
the Court to conclude that "no rational trier of fact could [find] proof of guilt beyond a
reasonable doubt." MacDonald, 32 F. Supp. 3d at 707 (quoting Hunt, 205 F.3d 1333).
To the extent Petition also seeks to raise a claim of ineffective assistance of
counsel, his Motion to Vacate still must be denied. An ineffective assistance of counsel
claim is governed by the two-part test set forth in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052 (1984). "Pursuant to that test, to prevail on an ineffective assistance claim,

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a petitioner must establish that (1) counsel's performance was deficient and (2) there is a
reasonable probability that the deficiency prejudiced the defense." Merzbacher v. Shear/n,
706 F.3d 356, 363 (4th Cir. 2013) (citing Strickland, 466 U.S. at 687, 694). To establish
that counsel's performance was deficient, a petitioner "must show that counsel's
representation fell below an objective standard of reasonableness." Id. (citing Strickland, ,
466 U.S. at 688). However, "[c]ourts 'indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance,' in order to avoid 'the
distorting effects of hindsight.' Id. (quoting Yarbrough v. Johnson, 520 F.3d 329, 337
(4th Cir. 2008)). To establish prejudice, a petitioner "must show that 'but for counsel's
unprofessional errors, the result of the proceeding would have been different.' Id.
(quoting Strickland, 466 U.S. at 694).
Petitioner's only contention with respect to an' deficiency on the part of his trial
counsel is that his counsel refused to speak directly with Roman before trial because
Roman was represented by counsel. See ECF No. 771-1 at 2. Pursuant to Rule 4.2 of the
Maryland Lawyers' Rules of Professional Conduct, "in representing a client, a lawyer shall not
communicate about the subject of the representation with a person who the lawyer knows is
represented in the matter by another lawyer ...." Thus, Petitioner has failed to establish that his
counsel's conduct "fell below an objective standard of reasonableness," Merzbacher, 706
F.3d at 363 (citation omitted), and, in any event, has not argued that any alleged deficiency
would have changed the result of the jury's verdict.
III. CERTIFICATE OF APPEALABILITY
"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.0 § 2253(c)(2). This

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standard is satisfied by demonstrating that reasonable jurists would find the court's
assessment of the constitutional claims presented debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See, e.g Miller-El
v. Cockrell, 537 U.S. 322, 336, 123 SQ. 1029 (2003); Rose v. Lee, 252 F.3d 676, 683 (4th
Cir. 2001). This legal standard for issuance has not been met, and, accordingly, no
certificate of appealability shall issue in this case. Denial of a certificate of appealability,
however, does not prevent a petitioner from seeking pre-filing authorization for a
successive motion under 28 U.S.C. § 2255.
IV. CONCLUSION
For the foregoing reasons, Petitioner's Motion to Vacate, Set Aside, or Correct his
Sentence, ECF No. 771, is DENIED, and his Motion for Leave Requesting Permission to
File Exhibits, ECF No. 775, is GRANTED. A separate Order follows.

Dated: June

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,

2016
GEORGE J. HAZEL
United States District Judge

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