Whitehurst v. USA-2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 11/22/2016. (c/m 11/23/2016 aos, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

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PIIILLIP WHITEHURST,

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pro se

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Petitioner

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v.

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UNITED STATES OF AMERICA
Respondent

Civil No. P.JM 15-2914
Civil No. I'.JM 16-1775
(Related to Criminal No. PJM 11-0567)

MEMORANDUM OI'INION

Pro se Petitioner Phillip Whitehurst has filed the two Motions to Vacate his sentence
pursuant to 28 U.S.C. S2255. The first makes five claims of ineffective assistance 01" counsel.
ECF No. 467. The second asks the Court to examine the applicability of the Supreme Court's
ruling in Johnson v. Uniled Slales. 135 S. Ct. 2551 (2015) to his case. ECF No. 499. For the
reasons set forth below, the Court DENIES both Motions.

I. FACTUAL AND PROCEDURAL BACKGROUND
On September 22. 20 II, the Government filed a criminal complaint against twenty
defendants, including Whitehurst, charging them with conspiracy to distribute and possess with
intent to distribute a mixture or substance containing a detectable amount of cocaine and/or
cocaine base, in violation of21 U.S.c.

S

846. A federal public defender was appointed for

Whitehurst, but moved to withdraw based on conflicts of interest. Whitehurst then went through
a number of attorneys: Alan Bussard, Esquire; Allen Orenberg, Esquire; Arthur Reynolds,
Esquire: and Mamitta King. Esquire. King entered her appearance as counsel of record on May

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9,2013 and represented Whitehurst in negotiating his plea, at sentencing, and in his appeals.
Whitehurst"s claims of ineffective assistance are made with respect to King's representation.
Whitehurst was indicted by a grand jury on April 25, 2012 per a Third Superseding
Indictment. In the Fourth and FiJih Superseding Indictments, Whitehurst was charged with three
Counts: (I) conspiracy to distribute and possess with intent to distribute five kilograms or more
of cocaine and 280 grams or more of cocaine base, in violation 01'21 V.S.c.

S 846 (Count

One);

(2) distribution and possession with intent to distribute a mixture or substance containing a
detectable amount of cocaine or cocaine base, in violation 01'21 V.S.c.

S 841 and

18 V.S.c.

(Count Two); and (3) possession ofa firearnl by a convicted felon, in violation of 18 V.S.c.

S2

S

922(g)(I) (Count Three). ECF No. 487 at 2.
In September 2012, one of Whitehurst's coconspirators went to trial and several other coconspirators testified against that defendant. Id. The trial included testimony suggesting that
Whitehurst was the leader of the conspiracy. Id. at 3. The defendant in that case was found
guilty.
On September 10, 2013, the Government offered Whitehurst a plea bargain through King
that required him to plead guilty to Count 1, which carried a mandatory minimum sentence of 10
years and a maximum sentence oflife in custody. Id. In exchange, the Government agreed not to
seek an enhancement under 21 V.S.c.

S

851, which would have caused Whitehurst to face a

mandatory sentence of life in prison. The proposed plea agreement would have required
Whitehurst to waive his appellate rights.
On September 16, 2013, counsel for the Government met with Whitehurst and King for a
I

"reverse protTcr" session. During the meeting, the Government extensively discussed the depth
and quality of the evidence against Whitehurst, including testimony of cooperating witnesses

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(several of whom had already testified in his co-conspirator's

trial) as well as intercepted

telephone conversations between Whitehurst and various co-conspirators. ECF No. 487 at 4.
Whitehurst ultimately rejected the Government's written plea ofTer, but instead, without
an agreement with the Government, pled guilty to all three Counts pending against him in the
Filih Superseding Indictment. Id. at 5. Notwithstanding the fact that there was no agreement, the
Government advised the Court that it would not to seek an enhancement pursuant to 21 U.S.C. ~
851, which would have mandated a sentence of life in prison.
There were three disputed issues at sentencing: (I) the quantity of drugs attributable to
Whitehurst: (2) whether he was an organizer or leader of the drug conspiracy; and (3) the
calculation of his criminal history in the Pre-Sentence Report. Id. at 5. At sentencing, Judge
Alexander Williams heard testimony and arguments trom counsel as to those questions. Id. Alier
the evidence was presented, King dropped her objection to an enhancement for leadership in the
conspiracy. ECF No. 437 at 67 ~ 13-14.

Judge Williams gave Whitehurst "the benefit of the

doubt" on the quantity of drugs, and assigned him a base offense level of 36 - a compromise
between the defense's proposal 01'32 and the Government's proposal of 38. ECr No. 437 at 72 ~
14. Judge Williams agreed with the Government as to Whitehurst's criminal history calculation.
At sentencing, Judge Williams departed downward from the advisory guideline range of
360 months to life in custody and sentenced Whitehurst to 294 months on Count One, 240
months on Count 2. and 120 months on Count 3, all three sentences to run concurrently. Id. at 8.
King filed a timely appeal on Whitehurst's behalf. ECF Nos. 424, 430. Her brief on
appeal challenged the District Court's factual findings regarding the relevant drug amounts. ECF
No. 14-4016 (4th Cir. Sept. 17,2014). On March 31, 2015, the United States Court of Appeals
for the Fourth Circuit affirmed the District Court's judgment. ECF No. 452, 453.

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Whitehurst filed his first

S 2255

petition on September 25, 2015, then tiled supplemental

attachments on October 13, 2015. The Government responded on January 29, 2016, ECF No.
487, and Whitehurst replied on February 23, 2014. ECF No. 490. Whitehurst also sent a letter to
the Clerk's Office on May 24, 2016, "respectfully request[ing] that your ol1ice review my case to
determine if the recent Supreme Court holdings in Johnson v. United Slates, 135 S.C!. 2551 and
in Welch v. United States, No. 15-6416, effects my case." ECF No. 499. The clerk docketed the
letter as a second

S 2255

petition.

II.

ANAL YSIS

In his first Motion to Vacate, ECF No. 467, Whitehurst made five claims of ineffective
assistance of counsel.

Ineffective assistance of counsel claims arc governed by the two-part test first elucidated
by the Supreme Court in Strickland v. Washington, which provides that a defendant must show
•.that counsel's performance was deficient" and "that the deficient performance prejudiced the
defense." 466 U.S. 668, 687 (1984). These two elements are typically referred to as the
"perfonllance" and "prejudice" prongs. See Fields v. AI/orney Gen. 0IState {j{lvld., 956 F.2d
1290, 1297 (4th Cir. 1992). Since a petitioner bears the burden of proving both Strickland
elements, he fails to satisfy his overall burden ifhe fails to prove either. Id.

The right to effective assistance of counsel applies during the plea negotiation process
and is governed by the Strickland test. Missouri v. Frye. _ U.S. _' 132 S. Ct. 1399, 1409 (2012)
(citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)). Ineffective assistance at the plea bargaining
stage requires a showing that but for counsel's deficient representation, the outcome of the plea
process would have been different. Hill, 474 U.S. at 57.

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Where it is claimed that constitutionally inadequate assistance of counsel caused nonacceptance of a plea ofTer and further proceedings led to a less favorable outcome, "a defendant
must show that but for the ineffective advice of counsel there is a reasonable probability that the
plea offer would have been presented to the court ... that the court would have accepted its
terms, and that the conviction or sentence, or both, under the offer's terms would have been less
severe than under the judgment and sentence that in fact were imposed." Lafler v. Cooper, _

u.s. _,132

S.C!. 1376, 1385 (2012).

In his first Motion, Whitehurst alleges that King was inefTective as his counsel: (I) in
advising him to reject a plea deal offered in 2011 that stipulated to a sentence of 10 years of
incarceration, (2) in failing to communicate with him for a year about his direct appeal, (3) in
accepting a $30,000 retainer from Whitehurst's family in order to appeal, in addition to fees she
received pursuant to the Criminal Justice Act, (4) in constructively failing to appeal his sentence
by appealing only a frivolous issue, and (5) in urging Whitehurst to plead guilty without a
written plea agreement. These claims will be divided into two categories - those related to
negotiating the plea ((I) and (5)) and those related to thc appeal ((2),(3), and (4». None are
meritorious.
A. The Plea
Whitehurst alleges that he was offered two plea agreements by the Government, both of
which he rejected. The first. he says, was offered immediately alier his arrest and stipulated to a
sentence of 10 years of incarceration. According to Whitehurst. this offer occurred sometime
immediately after his arrest, when he alleges he was represented by criminal defense lawyer
Antoini Jones, though Jones never entered an appearance with the Court.

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The Government counters that it has no record of offering that deal and such a deal,
which stipulates the sentence, would have been rare. Furthermore, says the Government. even if
it had taken the unusual step to offer that kind of deal, it was not on the table by the time King
began representing Whitehurst in 2013.
The Govenuuent's

position is well-taken. Whitehurst's version of the facts as to the plea

agreement is incredible, but even if true, King was not Whitehurst's lawyer at the time the offer
was made. Since she did not represent him, her representation could not have been ineffective.'
The Government did. however, offer Whitehurst a deal in September 2013 shortly
before he pled guilty. Whitehurst alleges that King was ineffective because she urged him not to
take it and instead to plead guilty without an agreement with the Government. This argument
fails both prongs of Strickland. First, King's representation was not ineffective because. as the
Government points out. her strategy yielded significant benefits for Whitehurst, including
preserving his ability to appeal, without forfeiting the biggest benefit of any potential plea deal
- an agreement by the Government not to ask the Court for a ~851 enhancement.
Whitehurst's argument also falters on the prejudice prong of Strickland because
Whitehurst. under the plea agreement, would have stipulated to a higher base offense level than
Judgc Williams in fact ultimately found. Under the proposed agreement, Whitehurst would
have stipulated to an adjusted offense level of 41, ECF No. 487 at 4, whereas at sentencing
Judge Williams found him to have an adjusted offense level 01'40. ECF No. 437 at 73:12. As
such, Whitehurst cannot prove that "under the offer's tenus [his sentence] would have been less
severe than under the judgment and sentence that in fact were imposed," Lafler v. Cooper. _
U.S. _,132

S.Ct. 1376, 1385 (2012).

1 There is also no evidence that Jones ever represented Whitehurst. In fact, when Jones testified as a character
witness at Whitehurst's sentencing. he said on the record that he did not represent Whitehurst. ECF No. 437 at 83 ~

13-15.
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B. The Appeal
Whitehurst makes two related arguments regarding King's supposedly defective
assistance during his appeal. He argues that her failure to consult with him on the substance of
his appeal constituted ineffective assistance and, relatedly, that her choice of issues to appeal was
so trivolous as to constitute a failure to appeal, which is per se ineffective assistance.
In the Fourth Circuit, King contested Judge Williams' determination of the quantity of
drugs for which Whitehurst was deemed responsible. The quantity of drugs is significant in
calculating the offense level under the sentencing guidelines. This was one of three contested
issues at Whitehurst's sentencing and remained appealable despite his guilty plea. The other two
issues concerned his leadership role in the conspiracy, which King conceded at the sentencing
hearing after being contronted with the Government's overwhelming evidence, and Whitehurst"s
criminal history calculation.
Counsel is required to tile an appeal when directed by his or her client, Roe

1'.

Flores-

Ortega, 528 U.S. 470, 477 (2000), but need not appeal every jrivolous issue even at the direction
of a client. Jones v. Barnes, 463 U.S. 745, 751 (1983). King's decision to appeal only the issue
of the quantity of drugs was reasonable, particularly in light of the fact that, absent a plea
agreement's statement of facts or a full-fledged trial, the trial court had less information upon
which to make factual findings. See ECF No. 437 at 72:24 -73:12.

In contrast, King could have

reasonably viewed the evidence with respect to Whitehurst's criminal history and his leadership
role in the conspiracy as having been amply proven. Her representation, then, was not
constitutionally deficient.
In addition, King's alleged failure to meet with Whitehurst did not necessarily make her
assistance ineffective. As clearly stated by the Fourth Circuit, there is no established "minimum

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number of meetings between counsel and client prior to trial necessary to prepare an attorney to
provide effective assistance of counsel."' Moody v. Polk, 408 F.3d 141, 148 (4th Cir. 2005)
(quoting United States v. Olson, 846 F.2d I 103, 1108 (7th Cir. 1988».
Meeting and communicating regularly with a client may well be good practice, but even
best practices are not constitutionally required. Harrington v. Richter. 562 U.S. 86,105 (2011).
In addition. given that the other arguments for appeal were weak, Whitehurst has not shown what
possible difference a face-to-face meeting with counsel might have made and how the failure to
meet resulted in prejudice.
Whitehurst's last claim alleges that King simultaneously accepted CJA funds and a
$30,000 retainer from his family, in violation of the Criminal Justice Act and several rules of
professional conduct. ECF No 467-1 at 6. If true, troubling though it may be, an ethical lapse
does not necessary require a finding of ineffective assistance. See Strickland. 466 U.S. 668 at
688-89 (1984)( "No particular set of detailed rules for counsel's conduct can satisfactorily take
account of the variety of circumstances faced by defense counselor the range of legitimate
decisions regarding how best to represent a criminal defendant."')
In any event, Whitehurst makes only general allegations of prejudice. He writes that "the
totality of this sort of undignified conduct was prejudicial to this Movant having caused a
breakdown in the adversarial process."' Such an allegation does not in any sense demonstrate
how King's alleged unethical behavior may have impacted her representation and therefore does
not demonstrate the required prejudice under Strickland.

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III.

SECOND MOTION TO VACATE

On May 24. 2016. Whitehurst tiled a second Motion to Vacate pursuant to *2255. asking
the Court to consider the impact of the Supreme Court's decision in Johnson v. Uniled Slales.
1135 S.C!. 2551 (2015) on his case.
The Court's ruling in Johnson concerns sentencing enhancements given pursuant to the
residual clause of the Armed Career Criminal Act, 18 U.S.c. * 924(e)(2)(B). See Johnson. 135 S.
Ct. at 2557. Whitehurst received no such enhancement. The Supreme Court's ruling in Johnson
is thus inapplicable to this case.

IV.

CERTIFICATE OF APPEALABILITY

Rule ll(a) of the Rules Governing * 2255 Proceedings provides that "[tJhe district court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant:' A certificate of appealability will not issue absent "a substantial showing of the
denial ofa constitutional right." 28 U.S.c. * 2253(c)(2); Slack

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McDaniel, 529 U.S. 473, 474

(2000); Miller-Ell'. Cockrell, 537 U.S. 322, 322 (2003). A prisoner satisfies this standard by
"demonstrat[ingJ 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. Miller-EI, 537 U.S. at 338 (quoting Slack, 529 U.S. at
484). The Court has considered the record and finds that Whitehurst has not made the requisite
showing here with respect to either Motion to Vacate.

V.
For these reasons, Whitehurst's Motions to Vacate under 28 U.S.C. *2255. ECF Nos. 467
and 499, are DENIED.

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A separate Order will ISSUE.

/s/

-y../

P TER J. MESSITTE
TATES DISTRICT JUDGE

November
_,2016

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