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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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,

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Petitioner,

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Ci"il Case No.: GJH-15-3432
Criminal Case No: GJH-13-0607

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UNITED STATF.S OF AMERICA,

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I{espondent.

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MEMORANDUM

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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 ...

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[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'£'£'

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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.

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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

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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

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disadvantage.'

['mel/, 126 F,3d 561.

572 (4th Cir. 1997) (quoting A411r1'll)' Carrier. 477 U.S, 478. 494 (J 986».
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III.

DISCUSSION
Here. Nelson's

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2255 Motion to Vacate fails to mect either prong of the Sirickland test.

and is there lore denied,

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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.

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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

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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.

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V.

CONCLUSIO

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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

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-----------GEORGE.I. HAZEL
United States District .Iudge

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