USA v. Mack

Filing 2

MEMORANDUM OPINION AND ORDER denying (62 in PWG 14-cr-458) Motion to Vacate. Signed by Judge Paul W. Grimm on 2/27/2017. (c/m 2/27/2017 ah4s, Deputy Clerk)

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

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Criminal Case No.: PWG-14-458
Civil Case No.: PWG-16-45

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MEMORANDUM OPINION AND ORDER
Pursuant to Fed. R. Crim. P. ll(c)(l)(C),

Petitioner Marquis Mack pled guilty to using

interstate commerce facilitates in commission of a murder for hire, a violation of 18 U.S.C.
9 1958.

Plea Agreement, ECF No. 38.1

During the pendency of the case, the Court set a

deadline for the parties to respond to pretrial motions, ECF No. 34, which it extended, ECF No.
35. The parties entered the plea agreement prior to the response deadline.

Accordingly, the

Government never filed its responses to the pretrial motions. Now pending is Mack's Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.c. 92255, ECF No. 62. Mack argues
that the Government violated his Fifth, Sixth, and Fourteenth Amendment rights when it failed to
respond to his pre-trial motions and that his counsel was ineffective for failing to object to the
Government's non-response.
Opposition.

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Pet'r's Mem. 4-5, ECF No. 62-2. The Government has filed an

Resp't's Opp'n, ECF No. 68.2 Although "a pro se movant is entitled to have his

The ECF numbers cited herein refer to the documents filed in Mack's criminal case.

When Mack neglected to file a timely reply, I ordered him to do so by September 21,2016,
ECF No. 71, but he has failed to respond to this Order. Accordingly, Mack has waived his right
to file a reply in further support of his Motion.

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arguments reviewed with appropriate deference," the court may summarily deny the motion
without a hearing "if the

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2255 motion, along with the files and records of the case,

conclusively shows that [the prisoner] is not entitled to relief." Brown v. United States, Civil No.
DKC-10-2569 & Criminal No. DKC 08-529, 2013 WL 4562276, at *5 (D. Md. Aug. 27,2013)
(citing Gordon v. Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978); 28 U.S.C.

S

2255(b)).

As

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explained herein, the Government has conclusively shown that Mack is not entitled to relief.
Thus, no hearing is necessary.
Standard of Review
28 U.S.C.

S 2255(a)

permits a prisoner to file a motion to vacate, set aside or correct his

sentence on the ground that it "was imposed in violation of the Constitution or laws of the United
States." The prisoner must prove his case by a preponderance of the evidence. Brown, 2013 WL
4562276, at *5. If the court finds for the prisoner, "the court shall vacate and set the judgment
aside and shall discharge the prisoner or resentence him or grant a new trial or correct the
sentence as may appear appropriate."

28 U.S.C.

S 2255(b).

Discussion
On September 29, 2014, Mack was charged with use of interstate commerce facilities in
the commission of murder for hire. ECF No. 13. At his initial appearance several days later, he
pled "not guilty." ECF No. 18. A week later, Mack's court-appointed attorney, John Chamble,
filed two Motions to Suppress, ECF Nos. 21, 22, and a Motion to Dismiss the Indictment, ECF
No. 23. I ordered the Government to respond to the three motions by June 29, 2015. ECF No.
31. On June 18,2015, the Government moved for an extension to its response deadline.
No. 34. I granted the motion, setting a new deadline for July 17,2015.
No. 35.

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ECF

June 6, 2015 Order, ECF

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On July 7, 2015, Mack and the Government agreed plea agreement terms. ECF No. 38.
At a Rearraignment held the same day, I afforded Mack the opportunity to ask questions about
the process.

Rearraignment Tr. 4:1-2, Resp't's Opp'n Ex. A., ECF No. 68-1. Mack indicated

that he had not had sufficient time to consider the plea deal and objected that the Government
had not responded to the pretrial motions filed by his lawyer. Id. at 4:6-5:18.

I indicated that the

Rearraignment could be rescheduled but that it was up to the Government whether it would keep
the plea deal open. Id. at 5:22-6:4.

The Government informed the Court that the plea offer had

a deadline of 5:00 P.M. the same day. Id. at 8:4. The Government also indicated that it would
oppose Mack's pretrial motions before the July 18 deadline if he did not accept the plea
agreement and summarized the bases for its opposition.

Id. at 8: 14-11 :5. I then explained to

Mack that the Government's deadline for responding to his motions had not yet passed and that I
would not rule on those motions until a pretrial hearing scheduled for August 17, 2015. Id. at
11:11-22.

To give Mack additional time to discuss the pending matters with his attorney, I

recessed the hearing.

Id. at 11:23-25,

12:13-14.

After a roughly one-hour recess, Mack

accepted the deal and pled guilty. Id. at 13:22,36:10-14.
Six days later, Mack filed a request to withdraw his guilty plea, alleging that his "attorney
forced [Mack] through [the attorney's] lack of confidence and manipulation into signing the
plea." July 8, 2015 Ltr., ECF No. 42. On October 6, 2015, I held a telephone conference call to
discuss Mack's request and ordered Mack to file a motion to withdraw his guilty plea on or
before October 30,2015.

ECF No. 55. Mack never filed the motion, and his attorney informed

the Court that Mack no longer wished to withdraw his plea. On December 15,2015, I sentenced
Mack to 60 months in prison, half the term of incarceration that the Sentencing Guidelines

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recommend.

Sentencing Tr. 9:6-7, Resp't's

Opp'n Ex. B., ECF No. 68-2.

Mack filed the

pending Motion on January 4, 2016. ECF No. 62.
The government did not commit prosecutorial misconduct by declining to respond to
Mack's pretrial motions. "The test for reversible prosecutorial misconduct has two components:
(1) the prosecutor's

conduct must in fact be improper, and (2) such conduct must have

prejudicially affected defendant's substantive rights so as to deprive the defendant of a fair trial."
United States v. Francisco, 35 F.3d 116, 120 (4th Cir. 1994). Mack entered his guilty plea on
July 7, 2015, one week before the Government's deadline to respond to the pretrial motions. See
Rearraignment Tr. 36:10-14;

June 6, 2015 Order.

Mack's guilty plea rendered his pretrial

motions moot, obviating the need for the Government to respond to them. I explained this to
Mack at the Sentencing Hearing. Sentencing Tr. 21: 18-22 ("[W]hen counsel notified [the Court]
that there was going to be a plea, then any obligation on the part of the government to respond to
the pending motions that had been filed was eliminated and the plea was taken and accepted.").
Accordingly, the Government committed no misconduct when it did not respond to the Mack's
pretrial motions.

Since the Government committed no misconduct, Mack's attorneys did not

render ineffective assistance by failing to object. See Strickland v. Washington, 466 U.S. 668,
688 (1984) ("When a convicted defendant complains of the ineffectiveness
assistance, the defendant must show that counsel's

representation

of counsel's

fell below an objective

standard of reasonableness.").
Certificate of Appealability
Rule 11(a) of the Rules Governing Proceedings under 28 U.S.C. SS 2254 or 2255
provides that the Court must "issue or deny a certificate of appealability when it enters a final
order adverse to the petitioner."

Brown, 2013 WL 4562276, at *10.

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This certificate "is a

'jurisdictional

prerequisite'

to an appeal from the court's order" that "may issue 'only if the

applicant has made a substantial showing of the denial of a constitutional right.' " Id. (quoting
28 U.S.C.

S 2253(c)(2)

and citing United States v. Hadden, 475 F.3d 652, 659 (4th Cir. 2007)).

A prisoner makes this showing "(w]here the court denies a petitioner's motion on its merits ...
by demonstrating that reasonable jurists would find the court's assessment of the constitutional
claims debatable or wrong."

Id. (citing Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);

Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Because Mack has not shown that a reasonable
jurist "would find the court's assessment of the constitutional claim(] debatable or wrong," and
therefore has not made a substantial showing that his Constitutional rights were denied, this
Court will not issue a certificate of appealability; however, this ruling does not preclude Mack
from seeking a certificate of appealability from the Fourth Circuit.

See Loc. R. 22(b)(1) (4th

Cir.).
ORDER
Petitioner's Motion to Vacate, Set Aside or Correct Sentence, ECF No. 62, IS DENIED.
The Clerk is directed to file a copy of this Memorandum Opinion and Order in Criminal No.

CLOSE Civil Action No. PWG-16-45.

Dated:

O~ ~tJvLt

Paul . Grimm
United States District Judge

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