Exum v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/19/2020. (ybs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
XAVIER STANLEY EXUM
:
v.

:

Civil Action No. DKC 17-0660
Criminal Case No. DKC 13-0320

:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution is a motion to
vacate sentence under 28 U.S.C. § 2255 filed by Petitioner Xavier
Stanley Exum.

The issues have been briefed, and the court now

rules, no hearing being deemed necessary.

Local Rule 105.6.

For

the following reasons, the motion will be denied and a certificate
of appealability will not issue.
Petitioner was convicted, after a jury trial, of being a felon
in possession of a firearm and ammunition, and sentenced to 78
months imprisonment followed by 3 years of supervised release.

In

his § 2255 motion to vacate, he raises a claim of ineffective
representation by counsel.

He asserts that he was deprived of

effective assistance during plea negotiations.
I.

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 show 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.

28 U.S.C.

§ 2255(b).
To prevail on an ineffective assistance of counsel claim,
Petitioner

needs

objectively

first

to

unreasonable

professional norms.

show
when

that

“counsel’s

measured

efforts

against

were

prevailing

Second, the [Petitioner] must demonstrate

that counsel’s performance, if deficient, was also prejudicial.
This generally requires the [Petitioner] to demonstrate by a
reasonable probability that, but for counsel’s error, the result
of the proceeding would have been different.”

Frazer v. South

Carolina, 430 F.3d 696, 703 (4th Cir. 2005) (internal citations
omitted).

In evaluating objective unreasonableness, “a court must

indulge a strong presumption that counsel’s conduct falls within
the

wide

range

of

reasonable

professional

assistance[.]”

Strickland v. Washington, 466 U.S. 668, 689 (1984).

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In a pair of cases decided in 2012, the Supreme Court of the
United States explained how the Strickland test applies in the
guilty plea process.

First, in Missouri v. Frye, 566 U.S. 134,

145 (2012), the Court held “that, as a general rule, defense
counsel

has

the

duty

to

communicate

formal

offers

from

the

prosecution to accept a plea on terms and conditions that may be
favorable to the accused.”

Furthermore, the Court stated:

To show prejudice from ineffective
assistance of counsel where a plea offer has
lapsed or been rejected because of counsel’s
deficient
performance,
defendants
must
demonstrate a reasonable probability they
would have accepted the earlier plea offer had
they been afforded effective assistance of
counsel. Defendants must also demonstrate a
reasonable probability the plea would have
been entered without the prosecution canceling
it or the trial court refusing to accept it,
if they had the authority to exercise that
discretion under state law. To establish
prejudice in this instance, it is necessary to
show a reasonable probability that the end
result of the criminal process would have been
more favorable by reason of a plea to a lesser
charge or a sentence of less prison time. Cf.
Glover v. United States, 531 U.S. 198, 203,
121 S.Ct. 696, 148 L.Ed.2d 604 (2001) (“[A]ny
amount of [additional] jail time has Sixth
Amendment significance”).
Id. at 147.

In the second case, Lafler v. Cooper, 566 U.S. 156

(2012), the Court dealt with a slightly different scenario:

when

a “favorable” plea offer is communicated, but rejected based on
advice of counsel.

There, the defendant went to trial and was

convicted, receiving a harsher sentence than that offered in the
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rejected plea offer. The parties agreed that the attorney’s advice
was

deficient,

and

the

Court

determined

prejudice, and what remedy would be appropriate.

what

constituted

As to prejudice,

the Court determined:
To establish Strickland prejudice a
defendant must “show that there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different.” Id., at
694, 104 S.Ct. 2052. In the context of pleas
a defendant must show the outcome of the plea
process would have been different with
competent advice. See Frye, ante, at 1388–
1389, 132 S.Ct. 1399 (noting that Strickland’s
inquiry, as applied to advice with respect to
plea bargains, turns on “whether ‘the result
of the proceeding would have been different’”
(quoting Strickland, supra, at 694, 104 S.Ct.
2052)); see also [Hill v. Lockhart, 474 U.S.
52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)]
(“The. . . ‘prejudice,’ requirement. . .
focuses on whether counsel's constitutionally
ineffective performance affected the outcome
of the plea process”). In
Hill, when
evaluating
the
petitioner’s
claim
that
ineffective assistance led to the improvident
acceptance of a guilty plea, the Court
required the petitioner to show “that there is
a reasonable probability that, but for
counsel’s errors, [the defendant] would not
have pleaded guilty and would have insisted on
going to trial.” Ibid.
In contrast to Hill, here the ineffective
advice led not to an offer’s acceptance but to
its rejection. Having to stand trial, not
choosing to waive it, is the prejudice
alleged. In these circumstances 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 (i.e., that the defendant would
have accepted the plea and the prosecution
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would not have withdrawn it in light of
intervening circumstances), 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, 566 U.S. at 163–64.
II.

Analysis
Petitioner

asserts

that

trial

counsel

misadvised

him

concerning the available evidence to establish his guilt beyond a
reasonable doubt at trial and grossly misrepresented the advisory
guideline

range

of

conviction at trial.

imprisonment

triggered

by

his

potential

He then claims that he rejected a plea offer

based on that misadvice.

It seems, though, that Petitioner is

mistaken about the actual plea offer and the range that the
Government would have accepted.

Thus, he has not shown that there

was a more favorable plea offer that he would have accepted, and
his claim fails.
The only actual written offer presented to Petitioner came in
early July 2013.

That offer expired on July 31, 2013.

At that

time, Petitioner was represented by an assistant public defender,
and Petitioner does not challenge that phase of his representation.
That offer contemplated a base offense level of 26 under United
States Sentencing Guidelines Manual (“U.S.S.G.”) § 2K2.1(a)(1)
because the offense involved a semiautomatic firearm capable of
accepting a large capacity magazine and at the time, it was
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believed that Petitioner had at least two felony convictions of a
crime of violence or a controlled substance offense.

It also

contemplated application of the 4-level enhancement because the
firearm was possessed in connection with another felony offense
(the “drug bump” in Petitioner’s parlance.).
Petitioner contends, however, that he continued to discuss
the possibility of a plea with newly retained counsel, and that
those discussions were aided by a chart delineating the possible
guideline ranges.

Petitioner filed, eventually, two documents

that he claims were constructed by counsel to demonstrate the
guideline

differences.

The

first

is

ECF

No.

104-2,

parallels the guidelines in the written plea offer.
ECF No. 116-1.

and

it

The second is

It differs from the written plea offer in that the

base offense level was reduced to 22 because he had only one prior
conviction for a crime of violence.
scenarios

(the

plea

agreement

with

Thus, the ranges for all
the

drug

bump,

the

plea

agreement without the drug bump, and without plea agreement and
loss at trial) are reduced accordingly.

The range for a plea

agreement without the drug bump is 37 to 46 months.

In a letter

addressed to the court after sentencing and dated March 20, 2014,
and relied on by Petitioner to show that he would have accepted a
plea offer, (ECF No. 116-2), Petitioner stated that his attorney
told him his guidelines would be 51 to 63 months because the drug
bump would not apply because he was not separately charged with
6

drugs.

He concluded the letter: “I would’ve Never turned down 36

months knowing that there’s a chance I could get 97 months.”
Petitioner did not plead guilty; he went to trial.

After he

was found guilty, the presentence report found the base offense
level to be 22 because the defendant only had one prior conviction
for a crime of violence.

Based on the two documents supplied by

Petitioner, the court concludes that the parties apparently had
realized prior to trial that the base offense should be 22, and
not 26, based on his criminal history.

Thus, the court will

assume, for purposes of this motion, that the Government would
have agreed to a plea with stipulated guidelines of base offense
level 22, with a 4-level increase for possessing the firearm in
connection with another felony offense (again, Petitioner refers
to this increase as the drug bump).
support

for

any

contention

that

However, there is simply no
the

Government

would

have

entertained a plea agreement without the 4-level increase for the
drug bump.

Thus, prior to acceptance of responsibility, the

offense level would have been 26.
Petitioner does not contend that he failed to understand the
effect

on

the

guidelines

of

pleading

guilty

and

accepting

responsibility, namely a 3-level downward adjustment.

While he

claims to have thought the drug bump would not apply, based on
counsel’s erroneous advice, that simply does not matter.

While

the advice might have been wrong, because the 4-level increase for
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the drug bump did apply, the Government never indicated that it
would agree to delete it from the plea offer.
Petitioner wrote to the court shortly after the sentencing,
stating that he would have accepted a plea to 3 years if he had
known he faced 78 to 97 months after trial.
offered a plea to 3 years.

But, he was never

The Government always contended that

the 4-level enhancement for another felony offense applied and
there is no evidence that it would have agreed to delete it from
a plea agreement.
Thus, Petitioner has not shown that there was a viable plea
offer for three years that he would have accepted but for counsel’s
erroneous advice, either as to the strength of the Government’s
case or the applicable guidelines.

In effect, he has not shown

prejudice.1
III. Denial of Certificate of Appealability
Pursuant to Rule 11(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 final order adverse
to

the

applicant.

“jurisdictional

A

certificate

prerequisite”

to

an

of

appealability

appeal

from

the

is

a

court's

There is a dispute of fact between Petitioner’s and counsel’s
declarations about any discussion of the strength of the
Government’s case and the likelihood of conviction at trial. That
dispute is immaterial, however, for the same reasons: Petitioner
has not shown that he would have accepted the July 2013 plea offer
that had been available regardless.
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1

earlier order.
Cir. 2007).

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

A certificate of appealability may issue “only if the

applicant has made a substantial showing of the denial of a
constitutional right.”
denies

the

28 U.S.C. § 2253(c)(2).

petitioner’s

motion

on

its

Where the court

merits,

a

petitioner

satisfies this standard by demonstrating that reasonable jurists
would find the court’s assessment of the constitutional claims
debatable or wrong.

See Slack v. McDaniel, 529 U.S. 473, 484

(2000); see also Miller–El v. Cockrell, 537 U.S. 322, 336–38
(2003).

Petitioner has not satisfied this standard.

Accordingly,

a certificate of appealability will not issue.
A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

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