Edwards v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 9/11/2019. (cm 9/11/2019 - jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ANTONIO EDWARDS
:
v.

:

Civil Action No. DKC 16-3283
Criminal No. DKC 13-0650-003

:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution is a motion to
vacate

sentence

(“Petitioner”).

filed

by

(ECF No. 299).

Petitioner

Edwards

Petitioner has since filed three

supplements to his motion to vacate sentence.
342).

Antonio

(ECF Nos. 322; 333;

For the following reasons, the motion and first supplement

will be denied and the additional supplements will be dismissed as
untimely.
I.

Background
On

June

27,

2014,

Petitioner

was

convicted

by

jury

of

conspiracy to interfere with commerce by robbery in violation of
18 U.S.C. § 1951(a) (“Count 1”), conspiracy to possess with the
intent to distribute cocaine in violation of 21 U.S.C. § 846
(“Count 2”), conspiracy to possess a firearm in furtherance of a
drug trafficking crime and crime of violence in violation of 18
U.S.C. § 924(o) (“Count 3”), possession of a firearm in furtherance
of a drug trafficking crime and crime of violence in violation of

18

U.S.C.

§

924(c)

(“Count

4”),

and

felon

in

possession

of

ammunition in violation of 18 U.S.C. § 922(g)(1) (“Count 5”).

On

October 1, Petitioner was sentenced to 240 months imprisonment,
consisting of 180 months on Counts 1, 2, 3, and 5, concurrent, and
a consecutive 60 months on Count 4.

Petitioner appealed to the

United States Court of Appeals for the Fourth Circuit, and his
conviction was affirmed on April 19, 2016.
820 F.3d 93 (4th Cir. 2016).1

United States v. Hare,

Petitioner did not file a petition

for writ of certiorari with the Supreme Court of the United States.
Accordingly, Petitioner’s convictions became final on July 18,
2016.

See Clay v. United States, 537 U.S. 522, 525 (2003) (holding

that “a judgment of conviction becomes final when the time expires
for filing a petition for certiorari contesting the appellate
court’s affirmation of the conviction[]” – i.e., “90 days after
entry of the Court of Appeals’ judgment[]”).
On September 29, 2016, Petitioner filed the pending motion to
vacate his sentence pursuant to 28 U.S.C. § 2255.

(ECF No. 299).

The government was directed to respond to the motion and did so on
February 7, 2017.
(ECF No. 311).

(ECF No. 308).

Petitioner replied on March 20.

Petitioner has since filed three supplements to

1

Mr. Hare was a co-defendant whose appeal was decided along
with Petitioner’s.
2

his motion to vacate sentence.

(ECF Nos. 322 (July 10, 2017); 333

(December 6, 2017); 342 (May 24, 2018)).
II.

Standard of Review
To be eligible for relief under § 2255, a petitioner must

show, by a preponderance of the evidence, that his “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[.]”

28 U.S.C. § 2255(a).

A pro se movant, such

as Petitioner, is entitled to have his arguments reviewed with
appropriate consideration.
1151–53 (4th Cir. 1978).

See Gordon v. Leeke, 574 F.2d 1147,

But if the § 2255 motion, along with the

files and records of the case, conclusively shows that he is not
entitled to relief, a hearing on the motion is unnecessary and the
claims raised in the motion may be dismissed summarily. § 2255(b).
III. Analysis
A.

Original Motion to Vacate Sentence

Petitioner moves to vacate his sentence on the grounds of (1)
ineffective

assistance

of

counsel,

(2)

court

error,

(3)

prosecutorial misconduct, and (4) constitutional error in light of
Johnson v. United States, 135 S.Ct. 2551 (2015).
1.
To

Ineffective Assistance of Counsel
establish

ineffective

assistance

of

counsel,

the

petitioner must show both that his attorney’s performance fell
3

below an objective standard of reasonableness and that he suffered
actual prejudice.

Strickland v. Washington, 466 U.S. 668, 687

(1984). There is a strong presumption that counsel’s conduct falls
within a wide range of reasonably professional conduct, and courts
must be highly deferential in scrutinizing counsel’s performance.
Strickland, 466 U.S. at 688–89; Bunch v. Thompson, 949 F.2d 1354,
1363 (4th Cir. 1991).

Courts must judge the reasonableness of

attorney conduct “as of the time their actions occurred, not the
conduct’s consequences after the fact.”

Frye v. Lee, 235 F.3d

897, 906 (4th Cir. 2000). Furthermore, a determination need not be
made concerning the attorney’s performance if it is clear that no
prejudice could have resulted from some performance deficiency.
Strickland, 466 U.S. at 697.

To demonstrate actual prejudice,

Petitioner “must show that there is a reasonable probability that,
but

for

counsel’s

unprofessional

errors,

proceeding would have been different.”

the

result

of

the

Id. at 694.

Although Petitioner states that “[a]ll three attorneys were
ineffective to [him] in some way” (ECF No. 299, at 5), Petitioner
only alleges deficiencies in the performance of his appellate
counsel, Jonathan Gladstone, who helped prepare the consolidated
opening brief (ECF No. 299-1, at 16-17).2

2

Petitioner argues that

Petitioner states, “The ineffectiveness of Mr. McCants is
all so different[,]” without providing any facts for the court to
evaluate Petitioner’s ineffective assistance claim regarding Mr.
McCants. (ECF No. 299-1, at 17).
4

Mr. Gladstone “went against [Petitioner’s] expressed instructions
and filed an opening brief without notifying [Petitioner] or
allowing [Petitioner] to submit any input on what [Petitioner]
thinks the issues at trial that should have been addressed through
the appeal process.”

(Id. at 16).

As a result, Petitioner “[did]

not get his issues in review on the guns that he didn’t have
knowledge of[,] the act of prejudice during the motions before
trial[,] and several other issues that weren’t addressed[.]”

(Id.

at 16-17).
The selection of which issues to present on appeal is, almost
by its very nature, a strategic decision.

See Burket v. Angelone,

208 F.3d 172, 189 (4th Cir. 2000) (“[A]ppellate counsel is given
significant

latitude

to

develop

a

strategy

that

may

omit

meritorious claims in order to avoid burying issues in a legal
jungle.”); Haynes v. United States, 451 F.Supp.2d 713, 722 (D.Md.
2006) (“Limiting the issues to the stronger or strongest ones while
winnowing

out

the

weaker

is

sound

appellate

strategy.”).

“Effective assistance of appellate counsel does not require the
presentation of all issues on appeal that may have merit, and [the
court] must accord counsel the presumption that he decided which
issues were most likely to afford relief on appeal.”

Lawrence v.

Branker, 517 F.3d 700, 709 (4th Cir. 2008) (quotation marks,
brackets,

and

citations

omitted).

Consequently,

while

it

is

conceivably possible to bring an ineffective assistance claim
5

premised on an appellate counsel’s failure to raise an issue, “it
will be difficult.”

Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir.

2000) (quotation marks and brackets omitted).

An ineffective

assistance claim based on an ignored issue generally will only
succeed “when ignored issues are clearly stronger than those
presented[.]”

Lawrence, 517 F.3d at 709.

That standard has not been met here. Appellate counsel raised
several issues on appeal, making at least one argument of such
strength

that

the

published opinion.

Fourth

Circuit

addressed

the

appeal

in

a

Contrary to Petitioner’s contention, appellate

counsel did argue that there was no evidence that Petitioner was
aware of the presence of guns to support his conviction for
possession of firearms.

Consolidated Opening Brief of Appellants,

United States v. Hare, 2015 WL 1869623, at *66-70 (4th Cir. 2016).
Additionally, appellate counsel argued that based on the decision
of the Supreme Court in Rosemond v. United States, 134 S.Ct. 1240
(2014),

this

court’s

aiding

and

abetting

instructions

were

erroneous because they did not require Petitioner to know in
advance that guns would be involved in the robbery.

Consolidated

Opening Brief, at *58-66. In Mr. Gladstone’s opinion, the Rosemond
case “form[ed] the basis for one of the strongest arguments in the
appeal.”

(ECF No. 308-1, at 3).

Petitioner states that there were “several other issues that
weren’t addressed” on appeal.

(ECF No. 299-1, at 17).
6

Mr.

Gladstone

stated

in

his

response

to

Petitioner’s

motion

to

substitute counsel that he “was not willing to make arguments which
he believed were pointless and frivolous[]” and that “many of
[Petitioner’s] desired arguments [went] to [the] sufficiency of
the evidence” which Mr. Gladstone “[did] not believe would be
effective.”

(ECF No. 308-1, at 2).

ineffective

assistance

in

Mr. Gladstone did not render

deciding

to

forego

making

likely

fruitless arguments in favor of making other stronger arguments.
See, e.g., Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010)
(“Appellate counsel cannot be found to be ineffective for failure
to raise an issue that lacks merit.” (quotation marks and citation
omitted)).

Therefore,

Plaintiff’s

ineffective

assistance

of

counsel claim fails.
2.

Court Error

Petitioner argues that the court erred by failing to grant
his motion to sever “when there was clearly a Bruton issue between
co-defendants[]” and by failing to grant his motion to suppress
“the

audio

Petitioner.

in

the

car[,]”

which

(ECF No. 299, at 5).

resulted

in

prejudice

to

The government argues in

response that “both of [Petitioner’s] claims are procedurally
defaulted because [Petitioner] could have, but failed to, raise
the issue on direct appeal.”

(ECF No. 308, at 5).

In order to collaterally attack a conviction
or sentence based upon errors that could have
been but were not pursued on direct appeal,
7

the movant must show cause and actual
prejudice resulting from the errors of which
he complains or he must demonstrate that a
miscarriage of justice would result from the
refusal of the court to entertain the
collateral attack. The existence of cause for
a procedural default must turn on something
external to the defense, such as the novelty
of the claim or a denial of effective
assistance of counsel.
And, in order to
demonstrate that a miscarriage of justice
would result from the refusal of the court to
entertain the collateral attack, a movant must
show actual innocence by clear and convincing
evidence.
United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)
(internal citations omitted).
In his reply, Petitioner contends that he could not raise
these issues on appeal due to ineffective assistance of his
appellate counsel, Mr. Gladstone.

(ECF No. 311, at 3).

To

establish cause for his default based upon ineffective assistance
of counsel, Petitioner must show that Mr. Gladstone’s performance
fell below an objective standard of reasonableness and that he
suffered prejudice as a result.
considered

above,

Mr.

assistance on appeal.

Mikalajunas, 186 F.3d at 493.

Gladstone

did

not

render

As

ineffective

Additionally, Petitioner has not shown by

clear and convincing evidence that he is actually innocent of the
crimes for which he was convicted.
are procedurally defaulted.

8

Therefore, Petitioner’s claims

3.

Prosecutorial Misconduct

Petitioner

states

a

claim

of

prosecutorial

misconduct,

alleging Fifth Amendment and due process violations.
299, at 5).

(ECF No.

However, Petitioner does not specify what conduct

violated his Fifth Amendment due process rights for the court to
evaluate this claim.
4.

Johnson Claim

Petitioner

argues

that

in

light

of

the

Supreme

Court’s

decision in Johnson, holding that the residual clause of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is
unconstitutionally vague, the residual clause in § 924(c) is also
unconstitutionally vague.

(ECF No. 299-1, at 5-7).

Additionally,

Petitioner argues that Count 1 “does not qualify as a crime of
violence under the ACCA clause.”
Petitioner

contends

that

his

(Id. at 7).3
conviction

and

As a result,
sentence

for

possession of a firearm in furtherance of a drug trafficking crime
and crime of violence under § 924(c) and his career offender
designation “violate due process of law.”

(Id. at 5).

The Fourth Circuit rejected both arguments on appeal:
Section 924(c) prohibits the possession of a
firearm in furtherance of a crime of violence
or a drug trafficking crime. As the district
court explained to the jury, Appellants could
3

While a Hobbs Act Robbery qualifies as a crime of violence,
United States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019), a
conspiracy to commit a Hobbs Act Robbery does not. United States
v. Simms, 914 F.3d 229, 236 (4th Cir. 2019).
9

be found liable if they possessed a gun either
in furtherance of the crime of violence
charged in Count 1 or in furtherance of the
drug trafficking crime charged in Count 2.
The special verdict form clearly shows that
the jury found Appellants guilty of possessing
a firearm in furtherance of both crimes. []
Thus, even assuming that a Hobbs Act robbery
is not a crime of violence, Appellants’
verdicts may be sustained because the jury
found Appellants guilty of possessing, and
conspiring
to
possess,
a
firearm
in
furtherance of the drug trafficking crime of
which they were convicted in Count 2.
See
United States v. Najjar, 300 F.3d 466, 480 n.3
(4th Cir. 2002) (explaining that while “[a]
general verdict . . . should be set aside in
cases where the verdict is supportable on one
ground, but not another, and it is impossible
to tell which ground the jury selected[,]
[s]pecial verdicts obviate this problem by
allowing a court to determine upon what
factual and legal basis the jury decided a
given
question”
(quotation
omitted)).
Accordingly,
we
uphold
Appellants’
convictions.
Hare, 820 F.3d at 105-06.
Petitioner

also

appears

to

argue

that

his

sentence

was

enhanced unconstitutionally under the residual clause of the ACCA.
(ECF No. 299-1, at 8-12).

The ACCA provides that a person

convicted under 18 U.S.C. § 922(g) who has: “three previous
convictions . . . for a violent felony or a serious drug offense
. . . shall be fined under this title and imprisoned not less than
fifteen years[.]”

18 U.S.C. § 924(e)(1).

In turn,

“violent felony” means any crime punishable by
imprisonment for a term exceeding one year .
. . that—

10

(i) has as an element the use, attempted use,
or threatened use of physical force against
the person of another (“Force Clause”); or
(ii) is burglary, arson, or extortion,
involves use of explosives, (“Enumerated
Crimes Clause”) or otherwise involves conduct
that presents a serious potential risk of
physical
injury
to
another
(“Residual
Clause”)[.]
§ 924(e)(1)(B).

Without reaching the residual clause of the ACCA,

Petitioner qualified as an armed career criminal because he had
three previous convictions for felony drug offenses.
284, at 12-13).

(ECF No.

Therefore, Petitioner’s sentence was properly

enhanced.
B.

Supplements to Motion to Vacate Sentence

Petitioner filed supplements to his motion, two of them after
the expiration of the one-year limitations period for filing a
motion to vacate sentence.

To be timely, a federal prisoner must

file any motion to vacate, set aside, or correct his sentence,
including any amendments, within one year of the date on which the
judgment of conviction becomes final.

28 U.S.C. § 2255(f)(1).

Although Petitioner refers to his filings as supplements pursuant
to

Fed.R.Civ.P.

15(d),

Petitioner

raises

new

claims

in

his

supplements not raised in the original motion, and thus seeks to
amend his original motion.

As a result, the claims raised in

Petitioner’s later two supplements can only be considered if they
relate back to Petitioner’s original motion under Fed.R.Civ.P.
15(c)(1).
11

“The fact that amended claims arise from the same trial and
sentencing proceeding as the original motion does not mean that
the amended claims relate back for purposes of Rule 15(c).” United
States v. Pittman, 209 F.3d 314, 318 (4th Cir. 2000).

Otherwise,

“amendments to a § 2255 motion would almost invariably be allowed
even after the statute of limitations had expired, because most
§ 2255

claims

arise

from

conviction and sentence.”

a
Id.

criminal

defendant’s

underlying

“In evaluating a ‘relation back’

theory in the context of a § 2255 motion, courts look to see
whether the petitioner’s new claims and original claims ‘arise
from separate occurrences of “both time and type.”’”
United

States,

468

F.Supp.2d

Pittman, 209 F.3d at 318).

780,

784

(D.Md.

Anderson v.

2007)

(quoting

“For the new claims to relate back to

the original claims, they must arise from the ‘same set of facts,’
and the original motion must have put the government on notice of
the theories asserted in the untimely filing.” Id. (quoting United
States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999)).
Petitioner argues in his first supplement that “the Court
should vacate Count 4 and remand for resentencing” because “[t]he
verdict does not reveal whether the convictions were based upon an
erroneous aider and abettor instruction (in light of Rosemond) or
a Pinkerton instruction.”

(ECF No. 322, at 5-6).

initial motion does not address this issue.

Petitioner’s

Moreover, Petitioner

raised the issue on appeal that this court’s aiding and abetting
12

jury instruction was erroneous, which the Fourth Circuit rejected.
See Hare, 820 F.3d at 105; see also United States v. Hastings, 134
F.3d 235, 243-44 (4th Cir. 1998) (holding that even assuming a
given instruction was erroneous, the defendant must demonstrate
that the erroneous instruction resulted in his conviction, not
merely that it was impossible to tell under which prong the jury
convicted).
In

This argument presents no basis for relief.

his

second

supplement,

Petitioner

claims

that

his

designation as an armed career criminal and sentence enhancement
under the ACCA were improper because he lacks three previous
qualifying convictions.

(ECF No. 333, at 4).

This claim does not

relate back to Petitioner’s claim in his original motion that his
sentence was enhanced unconstitutionally under the residual clause
of the ACCA in light of Johnson and will not be considered.4
Additionally,

Petitioner’s

claims

that

the

court

erred

by

instructing the jury on Pinkerton liability and that counsel was
ineffective for raising this issue on appeal do not relate back to
his original motion and thus are untimely.5

4

Petitioner raises this claim again in his third supplement.
(ECF No. 342, at 5-6). It will be dismissed for the same reason.
5

Petitioner challenges the determination by the Fourth
Circuit that even if the court’s aiding and abetting instructions
were erroneous, Petitioner’s conviction could still be sustained
under the Pinkerton theory of liability.
(ECF No. 333, at 6).
Petitioner contends that his conviction could not be sustained
under the Pinkerton theory of liability because a government agent
testified at trial that Petitioner never agreed to be a participant
13

The claims raised in Petitioner’s third supplement do not
relate back to any in his original motion and thus are untimely.
Petitioner attempts to avoid the statute of limitations bar by
bringing a claim that in light of Sessions v. Dimaya, 138 S.Ct.
1204 (2018), his sentence enhancement pursuant to the ACCA is also
unconstitutional.6

(ECF No. 342, at 6-8).

In Dimaya, 138 S.Ct.

at 1210–11, the Supreme Court held that in light of its decision
in

Johnson

that

the

residual

clause

in

the

ACCA

is

unconstitutionally vague, the residual clause in section 16(b) of
the

Immigration

and

unconstitutionally vague.

Nationality

Act

(“INA”)

is

also

Petitioner was not convicted under the

INA and thus Dimaya does not recognize a right that may be asserted
by

Petitioner.

Moreover,

as

previously

discussed,

without

reaching the residual clause of the ACCA, Petitioner qualified as
an armed career criminal because he had three previous convictions

in the robbery of the stash house, thus he could not be a coconspirator subject to liability under Pinkerton. (Id. at 7). It
appears that Petitioner’s argument is that the court erred by
instructing the jury on Pinkerton liability and counsel was
ineffective for failing to raise this issue on appeal when counsel
raised the issue that the court’s aiding and abetting instructions
were erroneous.
6

Pursuant to § 2255(f)(3) the one-year limitations period
runs from “the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review.”
14

for

felony

enhanced.
IV.

drug

offenses

and

his

sentence

was

appropriately

Thus, Petitioner’s claim in light of Dimaya fails.

Conclusion
For the foregoing reasons, the motion to vacate sentence and

first supplement filed by Petitioner Antonio Edwards will be
denied, and the two latest supplements will be dismissed.
Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. §§ 2254 or 2255, the court is also required to
issue or deny a certificate of appealability when it enters a final
order adverse to the petitioner.

A certificate of appealability

is a “jurisdictional prerequisite” to an appeal from the court’s
order.

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

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 the

petitioner’s motion on its merits, a petitioner satisfies this
standard by demonstrating that reasonable jurists would find the
court’s
wrong.

assessment

of

the

constitutional

claims

debatable

or

See Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also

Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003). Where a motion
is denied on a procedural ground, a certificate of appealability
will not issue unless the petitioner can demonstrate both “(1)
that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
15

(2) that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”

Rose v.

Lee, 252 F.3d 676, 684 (4th Cir. 2001) (internal marks omitted).
Upon its review of the record, the court finds that Petitioner
does not satisfy the above standard.

Accordingly, it declines to

issue a certificate of appealability.

A separate order will

follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

16