Marcantoni v. USA-2255
MEMORANDUM OPINION. Signed by Judge Roger W Titus on 7/15/2016. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA,
Civil Action No. RWT-15-2194
(Related Criminal Case No. RWT-10-0777)
Petitioner seeks an evidentiary hearing and discovery to resolve issues raised in his
Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. ECF No. 982. He
argues his counsel was ineffective in three respects: 1) in permitting Petitioner to enter into a
Plea Agreement involuntarily and unknowingly by failing to seek a continuance to allow them to
fully explain the Plea Agreement to him; 2) in failing to seek suppression of wiretap evidence on
the grounds that the Government found the wiretapped line through the warrantless use of a cell
site simulator; and 3) in failing to object to a factual disparity between the Indictment and
Petitioner’s presentence report.
On May 2, 2012, Petitioner Anthony Marcantoni was charged in two counts of a Second
Superseding Indictment that brought sixteen counts against ten defendants for their involvement
in a large drug conspiracy in Maryland. ECF No. 341. The two counts naming Petitioner were:
(1) Count One: distributing and possessing with the intent to distribute 1,000 kilograms or more
of a mixture or substance containing a detectable amount of marijuana; and (2) Count Sixteen:
distributing and possessing with intent to distribute a mixture and substance containing
marijuana. ECF No. 341, at 2-6, 23. In his sworn declaration, Petitioner stated, “From the
outset, I advised counsel that I had no interest in pleading guilty and that I requested a trial.”
ECF No. 982-3, at 1 ¶ 3. On June 22, 2012, Petitioner pleaded “Not Guilty” on both counts.
ECF No. 402. Petitioner was then on course to participate in an eight-week trial scheduled to
begin on September 11, 2012. ECF No. 188.
On August 30, 2012, Petitioner’s counsel moved to suppress evidence obtained and
derived from a wiretap on “Line J,” claiming the wiretap was unlawful. ECF No. 427. The
Court conducted a hearing regarding the Line J wiretap on September 10, 2012, the day before
the trial was scheduled to commence and denied the motion. ECF No. 982-4, at 2 ¶ 9.
The same day the Court denied Petitioner’s motion to suppress, the Government filed a
notice pursuant to 21 U.S.C. § 851(a) that it would seek enhanced penalties against Petitioner
under 21 U.S.C. § 841. ECF No. 453. The notice informed Petitioner that as a result of his prior
conviction,1 he faced a mandatory minimum of twenty years’ imprisonment with at least ten
years’ supervised release if the drug quantity was found to be 1,000 kilograms or more. Id. If
the drug quantity was found to be less than 1,000 kilograms but more than 100 kilograms, he
faced a mandatory minimum under § 841(b)(1)(B) of ten years’ imprisonment with at least eight
years’ supervised release. Id.
On the morning trial was to commence, Petitioner received a plea offer from the
Government with a deadline of 9:00 AM that morning. ECF No. 459. The Plea Agreement
would allow Petitioner to avoid the risk of a mandatory twenty-year sentence.
Stipulated Facts established the quantity of marijuana as less than 1,000 kilograms but more than
700 kilograms. Id. With this quantity, Petitioner would be subject to the ten-year mandatory
Petitioner was previously convicted of conspiracy to distribute marijuana in the United States District Court for the
District of Maryland, and was sentenced to 60 months imprisonment on April 6, 2005. ECF No. 453-1.
minimum sentence rather than the twenty-year minimum he would have faced if the jury
determined the quantity involved was 1,000 kilograms or more at trial. Id.
By the time Petitioner’s counsel had received the written Plea Agreement and presented
it to Petitioner in his holding cell, they had twenty minutes to explain to Petitioner the new
mandatory minimums he faced following the § 851 notice, the provisions of the Plea Agreement,
the Stipulated Facts attached to it, and the legal requirements of Rule 11. ECF No. 982-4, at 2-5
¶¶ 15-38. Petitioner “peppered” his counsel with questions regarding these issues, causing his
counsel to become concerned that he “failed to appreciate all material elements of the Plea
Agreement.” Id. at 3 ¶¶ 20, 22. These concerns notwithstanding, Petitioner’s counsel believed
the Plea Agreement to be “the most appropriate disposition” for the Petitioner based on the
denial of the motion to suppress the Line J wiretap evidence,2 so they recommended he accept
the offer and sign the Plea Agreement. Id. at 4 ¶ 33. Petitioner signed the Plea Agreement and
attached Stipulated Facts, as did his counsel. ECF No. 459, at 9. The Rule 11 proceeding
commenced at approximately 9:30 a.m. ECF No. 994-3, at 1.
At the Rule 11 proceeding, the Court asked Petitioner if he had read the Plea Agreement
and discussed its contents with his attorneys. ECF No. 994-3, at 7. Petitioner answered that he
had. Id. The Court asked if he believed he understood the provisions of the Plea Agreement,
and Petitioner said he did. Id. After affirming Petitioner had affixed his signature to the Plea
Agreement and Stipulated Facts, the Court asked the Government to summarize the essential
provisions of the Plea Agreement to “make sure nothing was overlooked” when Petitioner read
them. Id. at 8.
In an affidavit attached to this Motion, Petitioner’s defense attorney Howard L. Cardin stated, “The ‘Line J’
wiretap, and the fruits of it, amounted to the most damaging information against [Petitioner].” ECF No. 982-5, at 1
The Government summarized the key provisions of the Plea Agreement. Id. at 8-13.
Under the Plea Agreement, Petitioner agreed to plead “Guilty” to Count One of the Second
Superseding Indictment, with the factual stipulation that the quantity of marijuana was between
700 and 1,000 kilograms instead of the 1,000 kilograms or more as he was charged in the
indictment. Id. at 9-10. The Government agreed to dismiss the charges under Count Sixteen of
the Second Superseding Indictment. Id. at 11. Petitioner also agreed to forfeit a Rolex watch
and $500,000. Id. The Government summarized the waiver of his rights to appeal and the other
essential provisions in the Plea Agreement. Id. at 12-13.
The Court then asked Petitioner if he had any concerns or misunderstood any aspect of
the Plea Agreement as summarized by the Government. Id. at 13. Petitioner said he understood
the description, but was confused about the length of supervised release in relation to the § 851
Notice. Id. The Court and the Government clarified why eight years’ supervised release was the
statutory minimum, and Petitioner said he understood. Id. at 17.
The Court asked if anybody had threatened or forced Petitioner to plead guilty. Id. at 19.
Petitioner responded, “Just with the 20-year mandatory minimum. That’s about it.” Id. The
Court asked Petitioner if anyone had made any threats “other than the prosecutor promising to
prosecute you,” and the Petitioner said, “No, Your Honor.” Id. The Court then explained the
mechanism of the Sentencing Guidelines and its relation to the mandatory minimum sentence.
Id. at 22-24. Petitioner said he understood this explanation. Id. at 24. The Court explained the
sentencing process, describing the factors the Court must and will consider at the time of
Petitioner’s sentencing. Id. at 25-26. Petitioner again verbally confirmed he understood the
Court’s explanation. Id. at 26. The Court enumerated the rights Petitioner agreed to waive in the
Plea Agreement and asked if Petitioner understood those rights and what the waiver of them
meant. Id. at 26-30. Petitioner expressed his understanding of each of the rights and the
implications of waiving them. Id.
The Court then asked the Government to present the Stipulated Facts.
Id. at 31.
Following the Government’s presentation of the Stipulated Facts, Petitioner said he did not know
some of the people listed in the Stipulated Facts as his co-conspirators. Id. at 33-35. After the
Government insisted on the need for Petitioner to admit all facts were true as stipulated, the
Court called for a brief recess to allow Petitioner to confer with his counsel. Id. at 36. After
returning, Petitioner said he felt “like the Government is squeezing me to try to figure out who I
know and who I don’t know.” Id. at 42. After a second recess, the Court asked Petitioner to
answer whether the people listed were his co-conspirators, and Petitioner admitted that they were
and indicated he had no further objections to the Stipulated Facts. Id. at 42. The Court asked if
there was anything about that day’s proceedings Petitioner did not understand, and Petitioner
responded, “No.” Id. at 43. The Court then accepted Petitioner’s guilty plea and the Plea
Agreement and scheduled his sentencing hearing. Id. at 45.
On December 13, 2012, the Court sentenced Petitioner to 121 months’ imprisonment,
eight years’ supervised release, and a special assessment. ECF No. 619. Petitioner filed a Notice
of Appeal the following week. ECF No. 629. The Fourth Circuit affirmed the conviction.
United States v. Marcantoni, 568 Fed.Appx. 229 (4th Cir. 2014); ECF No. 860.
June 22, 2015, the Court reduced Petitioner’s sentence to 120 months’ imprisonment and
96 months’ supervised release based on a retroactively lowered guideline sentencing range.
ECF No. 973. Petitioner filed this § 2255 Motion and supporting affidavits with assistance of
counsel on July 23, 2015. ECF No. 982. The Government responded in opposition to the
Motion on December 8, 2015. ECF No. 994. Petitioner filed his Reply on December 21, 2015
then later filed Notices of Supplemental Authority on March 16, 2016 and April 5, 2016.3
ECF Nos. 996, 1017, 1019.
STANDARD OF REVIEW
Under 28 U.S.C. § 2255, a prisoner in custody may move the court to vacate, set aside, or
correct a sentence if he can 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, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255; Miller v.
United States, 261 F.2d 546, 547 (4th Cir. 1958). The claim must show a “fundamental defect
which inherently results in a complete miscarriage of justice” or “an omission inconsistent with
the rudimentary demand of fair procedure.” Hill v. United States, 368 U.S. 424, 428 (1962). If
the § 2255 motion, along with the files and records of the case, “conclusively show that [he] is
entitled to no relief,” a hearing on the motion is unnecessary and the claims raised in the motion
may be dismissed summarily. Miller, 261 F.2d at 547.
As an initial matter, Petitioner procedurally defaulted his claims that do not sound in
ineffective assistance of counsel. The remaining claims amount to three arguments, claiming
counsel was ineffective for: 1) not seeking a continuance before accepting the Plea Agreement,
resulting in Petitioner entering into the Plea Agreement involuntarily and unknowingly;
2) failing, because of a conflict of interest, to seek suppression of the Line J wiretap evidence on
The notices are identical and provide the same case. ECF Nos. 1017, 1019.
the grounds that the line was discovered through warrantless use of a cell site simulator device;4
and 3) failing to object to “materially inaccurate” information in the Plea Agreement and
Presentence Report (“PSR”). ECF Nos. 982-1, 996. For the reasons that follow, Petitioner’s
All claims unrelated to ineffective assistance of counsel have been procedurally
Errors in sentencing that could have been raised on direct appeal but were not pursued are
procedurally defaulted from being raised as a basis for a collateral attack. United States v.
Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999). Such claims can be presented on collateral
review only if the petitioner shows either: 1) “cause and prejudice” resulted from the error; or
2) “a miscarriage of justice would result from the refusal of the court to entertain a collateral
attack” (i.e. actual innocence). Id.
On his direct appeal to the Fourth Circuit, Petitioner argued he had not knowingly waived
his right to appeal in signing the Plea Agreement and contended the Court erred when it denied
Petitioner’s “motion to disclose allegedly intercepted communications between” his counsel and
his co-defendants’ counsel. United States v. Marcantoni, 568 Fed.Appx. 229 (4th Cir. 2014).
The Fourth Circuit found Petitioner “knowingly and intelligently agreed to waive his right to
appeal,” and he “has not challenged his conviction or sentence on appeal.” Id. None of
Petitioner’s claims here relate to these issues raised on direct appeal. Therefore, Petitioner has
procedurally defaulted his claims that do not relate to ineffective assistance of counsel. See
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (“A claim of ineffective
“A cell site simulator is a device that mimics a wireless carrier’s base station or cell tower. Nearby wireless
devices communicate and attempt to connect to the simulator as they would any nearby station. The simulator
records the location and electronic identifying information of each wireless device and stores that information.”
Jason M. Weinstein, William L. Drake, & Nicholas P. Silverman, Privacy vs. Public Safety: Prosecuting and
Defending Criminal Cases in the Post-Snowden Era, 52 AM. CRIM. L. REV. 729, 741 (2015) (footnotes omitted).
Petitioner refers to this device as a “stingray.” See generally ECF No. 982-1.
assistance of counsel should be raised by . . . [a] motion under 28 U.S.C. § 2255 in the district
court and not on direct appeal.”).
Petitioner has not argued the errors he claims show cause and prejudice outside the
context of ineffective assistance of counsel, nor has he argued for actual innocence. Instead, he
contends “virtually all of Petitioner’s claims sound in ineffective assistance of counsel,” and he
has framed his claims to reflect this assertion. ECF No. 996, at 2 n.2. In the absence of any
alternative argument for why his claims should be considered outside this framework, Petitioner
procedurally defaulted his claims except as they sound in ineffective assistance of counsel.
Petitioner’s Plea Agreement was valid, and counsel was not ineffective as it
relates to the Plea Agreement
Petitioner claims he entered into the Plea Agreement unknowingly and involuntarily as a
result of ineffective assistance of counsel. ECF No. 982-1, at 10-29. Specifically, Petitioner
claims counsel was ineffective for failing to request a continuance to allow them to explain the
Plea Agreement to Petitioner. Id. at 16. Petitioner also argued material differences between the
Plea Agreement and the Second Superseding Indictment confused Petitioner. Id. at 27. This
Court finds the record shows Petitioner entered into the Plea Agreement knowingly and
voluntarily, and his counsel was not ineffective as it relates to the Plea Agreement.
1. Petitioner’s statements at his Rule 11 colloquy contradict his allegations that he
did not enter into the Plea Agreement knowingly and voluntarily
Petitioner’s statements at his Rule 11 colloquy belie his claims that he entered into the
Plea Agreement unknowingly and involuntarily. As shown above, this claim is procedurally
defaulted to the extent it does not sound in ineffective assistance of counsel. Even if it was not
procedurally defaulted, the claim fails on the merits. “The standard for determining whether a
guilty plea is constitutionally valid is whether the guilty plea represents a voluntary and
intelligent choice among the alternative courses of action open to the defendant.” Walton v.
Angelone, 321 F.3d 442, 462 (4th Cir. 2003) (citing North Carolina v. Alford, 400 U.S. 25, 31
In making this determination, “courts look to the totality of the circumstances
surrounding the guilty plea, [Alford, 400 U.S. at 31], granting the defendant’s solemn
declarations of guilt a presumption of truthfulness.” Id. (citing Henderson v. Morgan, 426 U.S.
637, 648 (1976) (plurality opinion)).
“In the absence of extraordinary circumstances . . .
allegations in a § 2255 motion that directly contradict the petitioner’s sworn statements made
during a properly conducted Rule 11 colloquy are always ‘palpably incredible’ and ‘patently
frivolous or false.’” United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (internal
citations omitted); see also United States v. Foster, 68 F.3d 86, 88 (4th Cir. 1995).
Here, Petitioner’s allegations contradict his sworn statements at his Rule 11 colloquy.
Petitioner attempts to overcome the substantial weight given to his sworn statements at his
Rule 11 colloquy by arguing the record shows the colloquy “failed to conform with the strict
requirements of Rule 11.” ECF No. 982-1, at 11 n.7. He contends the Court should not have
found he entered into the Plea Agreement knowingly and voluntarily because he posed “myriad
questions” regarding the Plea Agreement at his Rule 11 colloquy. Id.
Petitioner’s argument has no merit because the record shows the Court resolved any
questions Petitioner had about the Plea Agreement at his Rule 11 colloquy. Throughout the
proceeding, Petitioner indicated he understood all aspects of the Plea Agreement and Stipulated
Facts, the rights he waived in entering the Plea Agreement, the mandatory minimum penalty he
faced, and the waiver of his right to appeal. See ECF No. 994-3. When Petitioner was confused,
first about the enhanced minimum length of supervised release and then about the
co-conspirators listed in the Stipulated Facts, the Court explained the issues to him and asked if
he understood. Id. at 13-17, 34-42. Both times, Petitioner said he did. Id. at 17, 42. The Court
took two separate recesses to allow Petitioner to confer with his counsel.
Id. at 34-42.
Petitioner’s initial confusion at his Rule 11 colloquy cannot serve as a basis to invalidate
Petitioner’s statements at his Rule 11 proceedings when the Court resolved that confusion.
Therefore, these statements are afforded a “presumption of truthfulness,” and Petitioner’s
allegations that contradict them must be dismissed. Walton, 321 F.3d at 462.
Petitioner also argues the differences in the quantity of marijuana and conduct time frame
between the Plea Agreement and Second Superseding Indictment further confused Petitioner.
ECF No. 982-1, at 27-28. As above, this argument contradicts Petitioner’s sworn statements at
his Rule 11 colloquy, where he said he understood the Stipulated Facts.
difference in marijuana quantity was not prejudicial. The Second Superseding Indictment listed
the quantity of marijuana at 1,000 kilograms or greater, carrying a twenty-year mandatory
minimum. Petitioner pleaded guilty to a quantity of greater than 700 kilograms but less than
1,000 kilograms, an offense carrying a ten-year mandatory minimum. This variation was part
and parcel of the Plea Agreement.
It allowed Petitioner to avoid the risk of receiving a
twenty-year mandatory minimum after trial by allowing him to plead guilty to a quantity that
carried a much lower ten-year mandatory minimum. It did not undermine the factual basis of the
plea, nor did it prejudice the Petitioner. This argument also holds true with the disparate
Based on Petitioner’s sworn statements at his Rule 11 colloquy, this Court finds he
entered into the Plea Agreement knowingly and voluntarily. Additionally, as shown below,
counsel was not ineffective as it relates to the Plea Agreement.
2. Petitioner’s counsel was not ineffective as it relates to the Plea Agreement
because Petitioner did not suffer actual prejudice from the alleged errors
Ineffective assistance of counsel claims are evaluated using the two-part test outlined in
Strickland v. Washington, 466 U.S. 668, 687 (1984). Under this two-part test, to prevail on an
ineffective assistance claim, a petitioner must show: 1) his attorney’s performance fell below an
objective standard of reasonableness; and 2) he suffered actual prejudice. Id. To show “actual
prejudice” in the context of a guilty plea, a petitioner “must show 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.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Here, this Court need not reach the question of whether Petitioner’s counsel’s
performance fell below an objective standard of reasonableness because Petitioner has failed to
demonstrate he suffered actual prejudice from the allegedly deficient conduct. See Foster,
68 F.3d at 88 (declining to reach question of attorney’s performance because petitioner was not
prejudiced by any alleged misconduct from his attorney). Petitioner baldly alleges the record
demonstrates he can show a reasonable probability that he would not have entered the Plea
Agreement had counsel moved for a continuance and explained it without the time constraints.
ECF No. 982-1, at 39. However, the record shows quite the opposite. Moreover, Petitioner has
failed to show a rejection of the Plea Agreement would have been objectively reasonable under
First, the Rule 11 colloquy gave Petitioner more time to consider and understand the Plea
Agreement outside the initial twenty-minutes where he conferred with his counsel, and he still
did not attempt to withdraw his guilty plea. As described above, during the hour-long Rule 11
colloquy, the Government and the Court explained the terms and implications of the Plea
Agreement, and Petitioner repeatedly affirmed his understanding of those terms and
implications, and he confirmed his guilty plea. ECF No. 994-3.
The record also shows Petitioner did not wish to withdraw his guilty plea nearly a month
after the Rule 11 colloquy. Petitioner cites a letter, sent by Petitioner pro se to this Court in
between his Rule 11 colloquy and sentencing hearing, as evidence of Petitioner’s confusion
surrounding the Plea Agreement.5 ECF No. 572. However, in that letter, sent nearly a month
after Petitioner signed the Plea Agreement and participated in his Rule 11 colloquy, Petitioner
wrote, “I do not wish to withdraw my plea of guilty.” ECF No. 572, at 2. If Petitioner still
accepted his guilty plea at this point, after he had nearly a month to further consider the Plea
Agreement, there is no reasonable probability a continuance of a few hours or more would have
made any difference in the outcome of the case.
Additionally, Petitioner did not seek to
withdraw his guilty plea at the time of sentencing.
Nowhere in the attached affidavits and declarations does Petitioner or his counsel say the
result would have been different if they had more time to consider the Plea Agreement.
Petitioner rests much of his argument for ineffective assistance of counsel on the supplied
affidavit of his trial attorney Howard Cardin. ECF No. 982-4. In that affidavit, Mr. Cardin states
Petitioner did not have adequate understanding of the Plea Agreement because he and
co-counsel, Steven Levin, had insufficient time to explain it to him. ECF No. 982-4, at 4 ¶¶ 28,
32. Mr. Cardin also states he and Mr. Levin “should have asked for more time with which to
confer with our client,” and he “was unable to come to an adequate legal conclusion as to
whether [Petitioner] should have pled guilty” within the amount of time he had to discuss it with
Petitioner sent the letter in question because he believed the Government was seizing assets from his checking
account as a part of the forfeiture agreement. ECF No. 572. Petitioner’s counsel wrote another letter to the Court
regarding this forfeiture issue, which the Court construed as a Motion for Accounting. ECF Nos. 809, 811. The
Court denied the motion after the Government explained in its response that it had not seized any bank accounts or
any other assets from Petitioner besides the Rolex. ECF No. 822.
Petitioner. Id. at 3-4 ¶¶ 34, 36. Mr. Cardin believes Petitioner decided to accept the Plea
Agreement based on his trust in Mr. Cardin arising from a long attorney/client relationship, id. at
4 ¶ 35, and this view is corroborated by Petitioner’s statement in his affidavit attached to this
Motion, ECF No. 982-3, at 3 ¶ 19. However, nowhere in Mr. Cardin’s affidavit does he state he
would have advised Petitioner differently had he asked for and received more time to consider it.
Petitioner states in his sworn declaration, “From the outset, I advised counsel that I had no
interest in pleading guilty.” ECF No. 982-3, at 1 ¶ 3. This statement carries little weight
compared to the rest of the record.
Petitioner signed the Plea Agreement, affirmed his
understanding and acceptance of its terms at his Rule 11 colloquy, and expressly declined to
withdraw his guilty plea nearly a month later.
Moreover, Petitioner has failed to demonstrate that rejecting the Plea Agreement would
have been an objectively reasonable choice under the circumstances. Petitioner only alleges that
the record shows a reasonable probability that he would have rejected the Plea Agreement. He
does not say anywhere in his argument or attached affidavit that he would have done so. Even
had he made such an allegation, it would be insufficient. For a petitioner to show a reasonable
probability he would have insisted on going to trial but for counsel’s errors, he must do more
than tell the court he would have gone to trial if given different advice. Christian v. Ballard, 792
F.3d 427, 452 (4th Cir. 2015) (citation omitted). The “petitioner must convince the court that a
decision to reject the plea bargain would have been rational under the circumstances.” Id.
(quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).
The circumstances here resemble
those in Christian, 792 F.3d at 453. There, the Fourth Circuit considered the “overwhelming”
record evidence of the petitioner’s guilt and the strong likelihood the petitioner would have
received life imprisonment or a 100-year sentence at trial. Id. Compared to the forty-year
sentence paired with generous parole provisions consented to in the plea agreement, the Fourth
Circuit “[had] no trouble” concluding the state court could have reasonably found the petitioner
was “lucky to get the deal that he did.” Id. (internal quotation marks omitted).
As in Christian, Petitioner’s low likelihood of prevailing at trial and the lower sentence
he faced under the Plea Agreement militate against any contention that rejection of the Plea
Agreement would have been an objectively reasonable choice. The Plea Agreement allowed
Petitioner to forego the risk of conviction for charges carrying a mandatory minimum sentence of
twenty years’ imprisonment and ten years’ supervised release, twice the mandatory sentence
length for the charges Petitioner pleaded guilty to. ECF No. 453; ECF No. 459. Petitioner has
made no allegations, nor has he presented any evidence that suggests he might have prevailed at
Both of Petitioner’s co-defendants received jury verdicts convicting them after the
Government presented wiretap evidence and testimony of co-conspirators.
ECF No. 544.
Especially after Petitioner’s motion to suppress the Line J evidence failed, evidence which
Mr. Cardin called “the most damaging” against Petitioner, rejection of the Plea Agreement
would have been unreasonable. ECF No. 982-5, at 1 ¶ 8. Under these circumstances, Petitioner
has failed to demonstrate rejection of the Plea Agreement would have been an objectively
reasonable choice. In fact, the record instead suggests rejection would have been objectively
In sum, the record refutes Petitioner’s allegation that there was a reasonable probability
he would have chosen differently if given more time to consider the Plea Agreement. The record
and evidence attached to Petitioner’s Motion both show a substantial probability Petitioner
would have accepted the Plea Agreement regardless of the amount of time his counsel had to
confer with him. Petitioner has therefore not satisfied his burden for demonstrating actual
prejudice resulted from ineffective assistance of counsel, so this claim for ineffective assistance
of counsel must be dismissed.
Counsel was not ineffective for failing to move to suppress the Line J evidence on
the basis that Line J was found via a warrantless use of a cell site simulator
Petitioner also claims his counsel was ineffective in failing to seek suppression of the
Line J wiretap evidence on the basis that it was discovered through warrantless use of a cell site
simulator. ECF No. 982-1, at 32. He claims further that this failure was the result of an actual
conflict of interest on the part of one of his two trial attorneys. Id. at 33. These highly
speculative claims must be dismissed.
1. Petitioner’s ineffective assistance of counsel claim fails on the merits because he
has not shown his counsel knew of the alleged use of a cell site simulator at the
time they moved to suppress the Line J evidence
To prove ineffective assistance of counsel, Petitioner must first show his counsel’s
conduct fell below an objectively reasonable standard. Strickland, 466 U.S. at 687. In his
attached declaration, Mr. Cardin said “at some point prior to May 4, 2015,” he “became aware”
of the use of a cell site simulator in connection to the investigation into Jacob Harryman, one of
Petitioner’s co-defendants. ECF No. 982-5, at 1 ¶ 3. He stated Assistant States Attorney Francis
Pilarski informed him on or after May 4, 2015 of the use of a cell site simulator in the Harryman
investigation. Id. at 1 ¶ 4. Mr. Cardin believes the investigators could not have known about
Line J without a cell site simulator being used in that investigation. Id. at 1 ¶ 7.
Petitioner has offered no evidence to show his counsel had or should have had any
awareness at the time of the suppression hearing that a warrantless cell site simulator was used to
find Line J. Counsel cannot be found ineffective for failing to move based on facts unknown to
them or facts they cannot reasonably be expected to have known.
Mr. Cardin’s statements
suggest he “became aware” of the cell site simulator’s use long after the hearing on the motion to
suppress the Line J evidence on September 10, 2012. Unlike Mr. Cardin’s statements relating to
the Plea Agreement, where he says he and Mr. Levin “should have asked the court for more time
within which to confer with our client,” Mr. Cardin makes no statement claiming he and
Mr. Levin should have moved to suppress the Line J evidence based on warrantless use of a cell
site simulator. ECF No. 982-4, at 4 ¶ 34. This further suggests Mr. Cardin had no knowledge of
any use of a cell site simulator at the relevant time. Petitioner alleges “there was every indication
that Levin, a former AUSA, had reason to believe a [cell site simulator] was used to find
‘Line J.’” ECF No. 982-1, at 32. Petitioner has offered no evidence to support this allegation.
“Every indication” apparently amounts to the fact that Mr. Levin is a former AUSA. Nothing in
the record suggests Petitioner’s counsel had any awareness of any use of a cell site simulator,
warrantless or otherwise at the relevant time.
Petitioner has alleged very few facts that rise above speculation to suggest a warrantless
use of a cell site simulator led to the discovery of Line J, nor has he plausibly alleged that his
counsel knew or should have known about this alleged use at the time they moved to suppress
the Line J evidence. Petitioner has not submitted anything above mere speculation to support his
allegations. Therefore, this claim fails on the merits.
2. Petitioner has not demonstrated Mr. Levin labored under an actual conflict of
In a related claim, Petitioner argues Mr. Levin labored under an actual conflict of interest
resulting in the failure to move to suppress the Line J evidence on the cell site simulator basis.
“To establish ineffective assistance of counsel on conflict of interest grounds, a petitioner must
establish that (1) his attorney labored under an ‘actual conflict of interest’ that (2) ‘adversely
affected his lawyer’s performance.’” Mickens v. Taylor, 240 F.3d 348, 355 (4th Cir. 2001)
(quoting Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)).
Petitioner argues Mr. Levin’s conflict of interest arose from a non-disclosure agreement
Mr. Levin allegedly entered into during his prior employment as an Assistant United States
ECF No. 982-1, at 33.
Petitioner’s only support for the existence of this
non-disclosure agreement is his “information and belief” and an unrelated non-disclosure
agreement from 2011 between the Federal Bureau of Investigation and the Baltimore Police
Department and the State’s Attorney for Baltimore City. Id.; ECF No. 982-2. Even if Mr. Levin
had entered into such a non-disclosure agreement, this claim runs into the same problem as
above: there is no evidence that Petitioner or his counsel knew a cell site simulator was used to
identify Line J at the time they moved to suppress the evidence. In fact, Mr. Cardin’s affidavit
claims he learned about the alleged use of a cell site simulator after the fact. As said above,
counsel cannot be found ineffective for failing to move based on facts they only later discovered.
Moreover, a non-disclosure agreement would not necessarily mean Mr. Levin labored under an
actual conflict of interest. If necessary, Mr. Levin could have filed the motion under seal to
avoid violating the agreement. Because Petitioner cannot plausibly allege an actual conflict of
interest or adverse performance, this claim fails on the merits.
Counsel was not ineffective for not objecting to the date range in the
Petitioner also claims counsel was ineffective for failing to object to a factual disparity
between the Stipulated Facts attached to the Plea Agreement and the presentencing report
(“PSR”). ECF No. 982-1, at 37-38. The Stipulated Facts list a three-year date range for the
conduct, “[b]etween in or about 2008 and at least in or about January 2011.” ECF No. 459-1.
The PSR states, “The offense occurred between a time unknown to the Grand Jury but no later
than in or about January 2001.” ECF No. 982-1, at 37 (citing PSR ¶ 1).6
Under Fed. R. Crim. P. Rule 32(f), parties may object to material information in the PSR.
Petitioner contends counsel was ineffective for failing to raise an objection pursuant to
Rule 32(f). ECF No. 982-1, at 38. He argues actual prejudice resulted because his sentencing
range was between 120 and 121 months, and he received a sentence at the “high end” rather than
the low end. Id. However, nothing in the record suggests the disparity in the conduct date range
swayed the Court’s decision. Moreover, even if this one-month difference resulted from the
factual disparity between the PSR and Stipulated Facts, that one-month difference has already
been remedied because Petitioner’s sentence was later lowered to 120 months, the lowest
allowed by the statutory minimum. ECF No. 973.
“In deciding whether to grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan,
550 U.S. 465, 474 (2007) (citations omitted). A district court need not hold an evidentiary
hearing “if the record refutes the applicant’s factual allegations or otherwise precludes habeas
relief.” Id. As shown above, Petitioner’s claims are either procedurally defaulted or they fail on
the merits. As such, an evidentiary hearing is not necessary.
CERTIFICATE OF APPEALABILITY
Petitioner may not appeal this Court’s denial of relief under § 2255 unless it issues a
certificate of appealability. United States v. Hardy, 227 F. App’x 272, 273 (4th Cir. 2007). A
This appears to be a scrivener’s error because the amended PSR at ¶ 1 states “The offense occurred between a time
unknown to the Grand Jury, but no later than in or about 2001, and in or about January 2011, in the State and
District of Maryland.” The error does not affect the Court’s analysis.
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) (2012); Hardy, 227 F. App’x 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 debatable.” United States v. Riley,
322 F. App’x 296, 297 (4th Cir. 2009). As shown above, Petitioner’s claims are procedurally
defaulted or meritless. No reasonable jurist could find merit in any of Petitioner’s claims, and
thus no certificate of appealability will issue.
This Court finds Petitioner’s claims not relating to ineffective assistance of counsel are
procedurally defaulted, and his ineffective assistance of counsel claims are meritless.
Petitioner’s Motion will be denied, and no certificate of appealability will be issued. A separate
Date: July 15, 2016
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE
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