Nelson v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 10/30/2017. (c/m 10/30/2017 tds, Deputy Clerk)

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US.l"~i FlLC') . rr"'''T I'''--'''T - .... L, ...~ ~.. ••.• vl,,, ....••..•.I" •• IN THF. UNITED STATF.S DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOllthem Di"i.\-;oll ZUIl OCT 30 A II: 24 c: ~. DAVID WAYNF. NHSON, , .; * Petitioner, * Ci"il Case No.: GJH-15-3432 Criminal Case No: GJH-13-0607 \'. * UNITED STATF.S OF AMERICA, * I{espondent. * * * * * * * * MEMORANDUM * * * * * * OPINION On Octobcr 28.2015. Pctitioncr David Waync Nelson was sentenccd to 140 months in prison t()lIowing his guilty plea to a violation 01'21 U.S.c. ~ 846. Conspiracy to Distributc and Posscssion with Intent to Distribute Cocainc. ECF No. 264. On Novcmbcr 9.2015. Nclson tiled a Motion to Vacatc. Sct Aside. or Correct Sentenec ("Motion to Vacatc") undcr 28 U.S.c. ~ 2255. which is currcntly pcnding before the Court. ECl' No. 352. Rcspondcnt. Unitcd Statcs of America. liled a Responsc bric[ ECF No. 361. and Nclson tilcd a Rcply bric[ ECF No. 365. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For thc 1()lIowing reasons. Dcfcndants' Motion to Vacate is denicd. I. BACKGROUND On October 28.2014. this Court sentenced Nelson to 140 months imprisonmcnt I())'his involvement in a drug trafficking conspiracy in violation 01'21 U.S.c. ~ 846. ECl' No. 264. At the time of his conduct in this casc. Nclson was on parolc I())'two statc offenscs. lOCI'No. 204 at 10.1 Prior to his sentencing, Government on April I <i. 2014, Nelson cntered into a pica agreement in which they agreed that ..the partics will reeommcnd state facility as the location whcrc the Defendant that ..[tlhe parties will also recommend any other sentence originally conditionally subsequently 29,2014. .... a and federal sentcnce run concurrently " ECF No. 118 at 5. Although released alier his arraignment violated the conditions that the Court designatc shall hegin serving his lederal sentence" that the Dclendant's imposed on the Defcndant "ith the to Nelson was on April l<i. 2014, ECF No. 148, he of his release and was detained pending sentencing on April ECF No. 137. At Nelson's federal sentenec" senteneing. the paI1ies did not recommend that Nelson "begin serving his in a state I~lcility. as includcd in thc plea agrcemcnt. into this condition, Nelson's attorncy, Christophcr Nieto, cxplained When thc Court inquircd that: At the time [of the pica deal] ... Mr. Nelson was on relcasc. and so we "'crc \HJrking diligently with his parolc oftkcr, upon Iinding of guilt hcrc, to havc him takcn into Statc custody and then run things concurrently. That didn't play out thc way wc hoped. So his parole issues are currently still unresolved .... Thcre's no State scntcnce [against Nclson], so thcrc's bcen a changc sincc the datc ofthc initial plea. ECF No. 3<iI-I at 28-29. rcsidcntial Nieto furthcr wcnt on to requcst that "Nclson drug or alcohol programs that he may qualify for," ld at 29. Thc Court sentenced Nelson to 140 months of imprisonment On Novcmher assistancc scrvicc," 9.2015. ECF No. 2M at 2. Nelson lilcd the pending Motion to Vacate. allcging incl'tCctive ECF No. 352 at 4. Spccilieally. had askcd whethcr this Dcfendant I Pin cites to documents by at FCI-Petcrshurg. of counsel .. t<H failure to secure transfer of defendant Imutc) and thc Dcfcndant hc allowcd into any hack to statc for coneurrcnt Nclson argucs that whcn .. [t1hc .Judge at scnteneing would bc rcturning to the Statc of Maryland has bccn prcjudiccd and harmcd ... 2 [I icto I stood in that hc has cftectively filed on the Court"s electronic filing system (CM/ECF) that system. ... ... refer to the page Ilumbers had his generated total term of incarceration Federal sentenecs:' incrcased due to the otherwise /d. The Government arguing that at the timc of sentencing. lilcd a Response on March 22. 2016. ECF No. 361. Nelson "was in federal (not state) custody. due to his own to a state facility to serve his federal scntence. imposed" Nclson's as his pica agreement Id at 4. The envisioned:' furthcr pointed out that there had not yet been issued "and may not ever ... a state sentence. sentencing recommend Idat 4-5. This is consistent with what Nieto conveyed to the Court at will to the Parole Board to take no action. to close it oul."). As such. the Government range of"profcssionally ... competcnt pcrformance" had no practical application:' test: that Nieto's conduct fell \vithin the because ..the stipulation received in this case:' in Nelson's to the sentence he ECF No. 361 at 5. Nelson tiled a reply on October 31. 2016. arguing that he should have been "delivered back to the State of Maryland for his parole revocation and that Nicto "should have known that a sentence cannot be givcn. in absentia. II)r a parole violation:' plea and that Nelson did not suffer prejudice becausc he "is not cUlTently subjcet to any state sentcnce that will run consecutively II. be hearing. ECF No. 361.1 at 28 ("I am hopeful that the parole agent ... argucs that Nelson I~lils both prongs of the Slrick/and agreemcnt service of his State and of releasc" and that there was "no reason 1111' Nelson to be sent failure to adherc to his conditions Government consecutive hcaring" to any inmate. ECF No. 365 at I. STANDARD OF REVIEW In order to be entitled to rcliefunder prcponderanee of the evidcnec 28 U.S.c. ~ 2255. a petitioner that ..the sentence was imposed in violation ofthc laws of the United States. or that the court was without jurisdiction that the sentcnee a/.I'o Unil£'dSll/le.l' was in excess ofthc ,'. Moore. must prove by a maximum authorized Constitution or to impose such sentence. or . bv law:' 28 U.S.c. 993 F.2d 1541 (4th Cir. 1993) (unpublished) ~ 2255(a): . (citing V{//llIler .I'£'£' \'. Boles. 377 F.2d 898 (4th Cir. 1967». Apr!! .Ie petitioner is. of course. entitled to have his arguments reviewed with appropriate 53 (4th Cir. 1978). Where. however. a case. conclusively unnecessary shows the petitioner See GOJ'(lonI'. l.eeke. 574 F.2d 1147. 1151- consideration. * 2255 pctition. along with the liles and rccords of the is not cntitled to relief: a hearing on the motion is and the claims raised therein may be dismissed An ineffective assistance of counsel elaim is governed Sirickland \'. Washing/on. 466 U.S. 668 (1984). "Pursuant assistance e1aim, a petitioner there is a reasonable summarily. that the deficiency * 2255(b), by the two-part test set forth in to that test. to prevail on an ineffective must establish that (I) counsel's probability 28 U.S.c. perf()[Jllance was deficient and (2) prejudiced the del'cnse," Mer=hacher I'. Shearin. 706 FJd 356, 363 (4th Cir. 2013) (citing Sirickland. 466 U,S. at 687. 6(4). To establish that counsel's performance fell below an objective However. "[c]ourts range of reasonable 'indulge a strong presumption profcssional a petitioner a petitioncr standard of reasonableness," hindsight. ... ld (quoting prejudice. was deficient. assistance.' "must show that counsel's representation ld (citing Sirickland, 466 U.S. at 688). that counsel's conduct falls within the wide in order to avoid 'the distorting effects of l'arhr!!lIgh \'. Johnson. 520 F.3d 329. 337 (4th Cir. 20(8». "must show that 'but lor counsel's unprofessional To establish crrors, the result of the proceeding would have been different. ... ld (quoting Sirickland. 466 U.S. at 6(4). Furthermore, a petitioner must show that counsel's "crror worked to his 'actual and substantial not merely that the error created a 'possibility of prejudice .... Salcher I'. disadvantage.' ['mel/, 126 F,3d 561. 572 (4th Cir. 1997) (quoting A411r1'll)' Carrier. 477 U.S, 478. 494 (J 986». \', III. DISCUSSION Here. Nelson's * 2255 Motion to Vacate fails to mect either prong of the Sirickland test. and is there lore denied, 4 First. Nelson has not shown that Nieto's "perltmnanee Nelson's was delieienC objective standard of reasonableness." Nelson's right to "receive every bene lit of the plea agreement was nonetheless is that Nieto did not assert ... .'. ECF No. However. Nieto's Government explained to the Court that they had hoped to obtain a parole revocation while Nelson was on conditional have been a State sentence reasonable. 365 at I (emphasis in original). prior to sentencing. representation sole contention below "an release: this way. at sentencing pending that Nelson could have served concurrently. Nelson violated the terms of his conditional release. and was detained his guilty plea. before Nieto could arrange lor his parole revocation Nelson did not have his parole revocation the time of sentencing. As such. the stipulation explained this to the Cmlli. and continued residential drug or aleohol programs release-was to advocate recommend .1 At the time Nicto about Nieto's conduct at the representation. met the lirst prong of the Strick/alld test. there is representation that the deficiency of prejudice." prejudiced sentence on Nelson; Nieto articulated the defense." as Nelson has alleged Satcher. 126 F3d at 572. As the Government Nieto pointed out. it was not a Itlregone conclusion additional was entered into that he may qualify lor." ECF No. 361-1 at 29. The Court that Nelson received reasonable nothing more than a "possibility hearing. See ECF No. 137. for Nelson to "be allowed into any sentencing probability Ilowever. no longer applicable. standard of reasonableness" Second. even ifNieto's there would less than two weeks alier in his plea agreement-which finds nothing "below an objective hearing and eoneludes hearing hearing. and there was no State sentence pending at before he violated the terms of his conditional not a "reasonable Nieto and the and that the State Parole Board would impose an that "I am hopeful that the parole agent ... will to the Parole Board to take no action. to close it out." ECF No. 361-1 at 2X.' As of this Opinion. there is no information on the record before the COUt1 regarding the State PtiTole Board. 5 any action taken by such. Nelson's argument that he "has effectively had his total term of incarceration increased due to the otherwise consecutive service of his State and Federal sentences:' is nothing more than speculation. based on the record currently before the Court. The Court has no way of knowing if there will be a State sentence. or whether the Parole Board will give Nelson credit Illr the time served as part of his Federal sentence. It is also not a given that the Court would have accepted Nieto's recommendation that Nelson serve his Federal scntence in a State Illcility. Ilaving alleged nothing more than a possibility of prejudice. the Court cannot find that Nieto's representation met the second prong of the Slrickland test. IV. CERTIFICATE OF APPEALABILITY Pursuant to Rule II(a) of the Rules Governing Proceedings under 28 U.S.c. ~ 2255. the court is required to issue or deny a certificate of appealability when it enters a linal order adverse to the applieant. A certificate of appealability is a "jurisdictional prerequisite" to an appealli'om the court's earlier order. Uniled Slates I'. Hadden. 475 F.3d 652. 659 (4th Cir. 2(07). 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.c. ~ 2253(c)(2). Where the court denies petitioner's motion on its merits. a petitioner satisfies this standard by demonstrating that reasonable jurists would find the court's assessment of the constitutional e1aims debatable or wrong. See Slack I'. McDaniel. 529 U.S. 473. 484 (2000); see also Miller-EI \'. Cockrell. 537 U.S. 322. 336-38 (2003). Because reasonable jurists would not lind Petitioner's e1aim debatable. no eerti fieate of appealability will issue. 6 V. CONCLUSIO • Ilaving tailed to allege that Nieto's representation meets either prong of the Strick/alit! test. the Court denies Nelson's Motion to Vacate. IOCr:No. 35~. As> Jamte Order shall issue. Date: October 30 /C ,20 I 7 -- -----------GEORGE.I. HAZEL United States District .Iudge 7

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