Hare v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/30/2020. (c/m 3/30/2020 ybs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
SHANE ELLIOTT HARE
:
v.

:

Civil Action No. DKC 17-0767
Criminal No. DKC 13-0650-001

:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution are a motion to
vacate sentence filed by Petitioner Shane Hare (“Petitioner”)
(ECF

No.

310),

and

three

motions

to

amend

or

supplement

Petitioner’s motion to vacate sentence (ECF Nos. 334; 346; and
352).

For

the

following

reasons,

the

motions

to

amend

or

supplement will be granted and the motion to vacate sentence
will be denied.
I.

Background
On

June

27,

2014,

Petitioner

was

convicted

by

jury

of

conspiracy to interfere with commerce by robbery (“Count 1”),
conspiracy to possess with the intent to distribute more than
500 grams but less than five kilograms of cocaine (“Count 2”),
conspiracy
trafficking

to

possess

crime

and

a

firearm

crime

of

in

furtherance

violence

(“Count

of

a

3”),

drug
and

possession of a firearm in furtherance of a drug trafficking
crime and crime of violence (“Count 4”).

On October 1, 2014,

Petitioner was sentenced to 132 months imprisonment, consisting
of

72

months

on

Counts

1,

2,

and

consecutive 60 months on Count 4.

3,

concurrent,

and

a

Petitioner appealed to the

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

United States v.

Petitioner’s petition for

writ of certiorari was denied by the Supreme Court of the United
States on October 3, 2016.
(mem.),

reh’g

denied,

137

Hare v. United States, 137 S.Ct. 224
S.Ct.

460

(2016).

Accordingly,

Petitioner’s convictions became final on October 3, 2016.

See

Clay v. United States, 537 U.S. 522, 527 (2003).
On March 20, 2017, Petitioner filed the pending motion to
vacate his sentence pursuant to 28 U.S.C. § 2255.
310).

(ECF No.

The government was directed to respond to the motion,

(ECF No. 312), and did so on June 16, 2017
Petitioner replied on July 17, 2017.

(ECF No. 319).

(ECF No. 323).

On April

12, 2017, Petitioner filed a supplement to his motion to vacate
sentence.

(ECF No. 313).

On December 18, 2017, Petitioner

filed the first motion to amend or supplement his motion to
vacate sentence.

(ECF No. 334).

1

On July 1, 2019, the court

As will be discussed in more detail below, counsel raised
an issue based on Johnson v. United States, 135 S.Ct. 2551
(2015), arguing that the § 924(c) conviction could not stand
because the Hobbs Act robbery conspiracy was not a crime of
violence.
The Fourth Circuit rejected that challenge because
the § 924(c) conviction also rested on a drug trafficking crime.
2

received a second motion to amend or supplement, (ECF No. 346),
and

on

January

30,

2020,

the

court

received

a

request

for

permission to supplement (ECF No. 352).
II.

Motion to Vacate Sentence
A.

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.
§ 2255(b).
B.

Ineffective Assistance of Counsel Claims

Petitioner brings three claims of ineffective assistance of
counsel to challenge his convictions and sentence.2
To

establish

ineffective

assistance

of

counsel,

the

petitioner must show both that his attorney’s performance fell
2

Petitioner

had

the

same

appeal.
3

counsel

during

trial

and

on

below

an

objective

standard

suffered actual prejudice.
668, 687 (1984).

of

reasonableness

and

that

he

Strickland v. Washington, 466 U.S.

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,

fact.”

Frye

v.

not

the

Lee,

235

conduct’s
F.3d

consequences

897,

906

(4th

after
Cir.

the

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.
U.S. at 697.
show

that

Strickland, 466

To demonstrate actual prejudice, Petitioner must

there

is

a

“reasonable

probability

that,

but

for

counsel’s unprofessional errors, the result of the proceeding
would have been different.”

Id. at 694.

1.
Counsel was not ineffective for failing to object to a
special jury verdict form.
Petitioner first argues that his counsel was ineffective
for

“not

objecting

to

a

special

jury

verdict

form”

that

permitted the jury to convict him of conspiring to distribute
less

than

indictment.

the

amount

of

cocaine

charged

(ECF No. 310-1, at 4-5).

4

in

Count

2

of

the

Petitioner contends that,

as a result, he was convicted of a crime that he was not charged
with and thus did not have notice to defend against at trial.
(Id. at 5-7).
raise

this

Petitioner also argues that counsel’s failure to

issue

“after

the

jury

verdict

constituted ineffective assistance of counsel.

and

on

appeal”

(Id. at 2, 8).

A defendant charged with conspiracy to
import
or
distribute
an
amount
of
a
controlled substance “can, if the evidence
warrants, be convicted of one of the lesser
included offenses” based on a smaller amount
of the substance.
United States v. Brooks,
524 F.3d 549, 555 n.9 (4th Cir. 2008). Such
a verdict is permissible as “an offense
necessarily
included
in
the
offense
charged.”
Fed.R.Crim.P. 31(c)(1).
Because
the lesser included offense is included in
the charged offense, there is no variance.
See United States v. Martinez, 430 F.3d 317,
340 (6th Cir. 2005) (“[T]his results in
neither a prejudicial variance from, nor a
constructive amendment to the indictment
because [the defendant] was merely convicted
of a lesser-included offense and all the
elements of the former necessarily include
those of the latter.”).
United States v. Cabrera-Beltran, 660 F.3d 742, 753 (4th Cir.
2011) (alteration in original).

Thus, counsel had no viable

reason to object to the special verdict form, post-trial or on
appeal, and was not ineffective for failing to raise a meritless
argument.3

3

Petitioner argues that should he succeed on this claim and
have his conviction vacated as to Count 2, he would argue that
Count 1 would be insufficient to support his conviction as to
Count 4 because a conspiracy to commit robbery “is not a violent
crime for 924(c) purposes.” (ECF No. 310-1, at 9). Because the
5

2.

Counsel was not ineffective on appeal.

Petitioner next argues that his counsel was ineffective for
failing to “[address properly] the insufficiency of the evidence
as to [C]ounts 1 and 2” on appeal.
Specifically,

Petitioner

contends

(ECF No. 310-1, at 9).

that

counsel

should

have

argued that Petitioner could not be convicted as to Counts 1 and
2

for

a

lesser

amount

“because

the

government[’]s

case

and

evidence was specific that there was a conspiracy to rob 10-15
kilograms

of

reasoning,

cocaine[.]”

Petitioner

(Id.,

also

at

argues

13).
that

Along
his

this

same

counsel

was

ineffective for failing to argue that “[t]he jury instructions
in this case clearly should have been that if the jury found
that” Petitioner went along with Plan B, rather than Plan A,
“they must render a verdict of not guilty” because “Plan B does
not constitute a robbery” to support a guilty verdict on Count
1.4

(Id., at 16).

For the reasons discussed below, the court

rejects both arguments.
Counsel

argued

in

a

post-trial

motion

that

the

jury’s

verdict as to Counts 1 and 2 was “entirely inconsistent, as
there could be no agreement to the amount of drugs found in
court rejects Petitioner’s claim with respect to Count 2, it
need not consider this argument.
4

“Plan A” was to rob a drug stash house of between 10 and
15 kilograms of cocaine. “Plan B” was to stage a fake robbery
and Petitioner and his co-defendants would take three kilograms
of cocaine. (ECF Nos. 310-1, at 17; 319, at 10).
6

Count 2 based upon an agreement to rob” in Count 1.
217, at 2-3).

(ECF No.

The court rejected that argument, stating that it

is not axiomatic from the jury’s determination that the quantity
of cocaine was less than five kilograms on Count 2 that the
jury’s verdict on Count 1 was based on insufficient evidence.
(See ECF No. 281, at 37-39).
To the extent Petitioner argues that counsel should have
raised the issue again on appeal, the selection of which issues
to present on appeal is, almost by its very nature, a strategic
decision.
2000)

See Burket v. Angelone, 208 F.3d 172, 189 (4th Cir.

(“[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.”);
States,

451

F.Supp.2d

713,

722

(D.Md.

Haynes v. United

2006)

(“Limiting

the

issues to the stronger or strongest ones while winnowing out the
weaker is sound appellate strategy.”); Lawrence v. Branker, 517
F.3d 700, 709 (4th Cir. 2008) (“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

citations

on

appeal.”

omitted)).

(quotation

Consequently,

marks,

while

it

brackets,
is

and

conceivably

possible to bring an ineffective assistance claim premised on an
appellate

counsel's

failure

to
7

raise

an

issue,

“it

will

be

difficult.”
(quotation

Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000)
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.

Petitioner

has

not

met

that

standard

here.

Appellate

counsel raised several issues on appeal, making at least one
argument of such strength that the Fourth Circuit addressed the
appeal in a published opinion.

Petitioner does not show how

making his proposed arguments challenging the jury instructions
and verdicts as to Counts 1 and 2 would have been stronger than
those

presented

on

appeal.

As

the

court

stated

in

denying

Petitioner’s post-trial motion, the fact that the jury made the
determination that the quantity of cocaine foreseeable was not
above five kilograms does not mean that the jury had to have
accepted that Plan B was the only agreement reached and must
have rejected Plan A.

(ECF No. 281, at 37-38).

Furthermore,

“it has long been settled that inconsistent jury verdicts do not
call into question the validity or legitimacy of the resulting
guilty verdicts[,]”

United States v. Green, 599 F.3d 360, 369

(4th Cir. 2010) (citing United States v. Powell, 469 U.S. 57, 64
(1984); Dunn v. United States, 284 U.S. 390, 393 (1932); United
States v. Blankenship, 707 F.2d 807, 810 (4th Cir. 1983)), and a
defendant cannot challenge his conviction based on inconsistent
8

verdicts, United States v. Louthian, 756 F.3d 295, 305 (4th Cir.
2014).

“Indeed,

an

inconsistent

verdict

can

result

from

mistake, compromise, or lenity, and a jury could just as likely
err in acquitting as in convicting.”
did

not

making

render
likely

ineffective
fruitless

Id.

assistance

arguments

stronger arguments on appeal.

in

in

Therefore, counsel
deciding

favor

of

to

forego

making

other

See, e.g., Shaneberger v. Jones,

615 F.3d 448, 452 (6th Cir. 2010).
Petitioner also makes an argument regarding his entrapment
defense

and

appears

to

argue

that

counsel

ineffectively

challenged the government’s response to Petitioner’s entrapment
defense.
the

(See ECF No. 310-1, at 18) (“The above arguments are

arguments

argues

that

that
in

counsel

response

should
to

his

have

made.”).

entrapment

Petitioner

argument,

the

government “continued telling the jury to take the agent out of
the equation[,]” which “was impossible . . . because the agent
was the main actor.”

(Id. at 16-17).

Petitioner further argues

that the government “had to tell the jury to take the agent out,
because they knew the law related to a law enforcement officer,
and

conspiracy[.]”

(Id.

at

17).

Specifically,

Petitioner

contends that he and his co-defendants could not conspire with
an

undercover

law

enforcement

official.

(Id.).

It

is

undisputed that if all of the participants in the scheme to rob
the drug stash house or stage a fake robbery were government
9

agents, except for Petitioner, then no conspiracy would exist as
Petitioner could not be convicted of conspiring with himself.
See United States v. Hayes, 775 F.2d 1279, 1283 (4th Cir. 1985).
Such is not the case here, however.

The conspiracy in Count 1

was supported by Petitioner’s agreement with his co-defendants
who

were

not

government

agents.

Thus,

counsel

was

not

ineffective for failing to make this argument on appeal.
Furthermore, to the extent Petitioner argues counsel should
have

raised

an

entrapment

argument

on

appeal,

even

assuming

counsel was deficient, Petitioner cannot show prejudice.

In its

opinion affirming Petitioner’s convictions, the Fourth Circuit
explicitly stated that “[it] would reject an entrapment claim,
were Appellants raising one.”
the

issue

verdict

of

entrapment

‘comprehends

appellate

court

may

a

is

Hare, 820 F.3d at 102 n.7 (“When
submitted

finding

overturn

of

this

to
no

the

jury,

entrapment’

determination

a

guilty

and

only

‘an

if

no

rational trier of fact could have found predisposition beyond a
reasonable

doubt,

favorable

to

the

viewing

the

evidence

prosecution.’

Under

in
the

the

light

most

predisposition

principles explained herein, a reasonable juror could have found
predisposition on the part of Appellants.”

(internal citation

omitted)).
Therefore, Petitioner has failed to establish that counsel
rendered ineffective assistance on appeal.
10

3.
Counsel did not render ineffective assistance by
failing to argue that Petitioner was illegally charged by
indictment as to Count 4.
Lastly, Petitioner argues that counsel was ineffective for
“fail[ing] to make an argument prior to trial, after trial, and
on appeal that [Petitioner] was illegally charged by indictment
as

to

[Count

4].”

(ECF

No.

310-1,

at

19).

Essentially,

Petitioner contends that counsel should have argued that the
government charged use of the same gun for two separate crimes
alleged in a single count — i.e., both in furtherance of drug
trafficking and in furtherance of a crime of violence.

(Id. at

20-24).
“[W]here a statute is worded in the disjunctive, federal
pleading requires the Government to charge in the conjunctive.
The

district

disjunctive.

court,

however,

can

instruct

the

jury

in

the

To do otherwise would improperly add elements to

the crime that are not contained in the statute itself.”

United

States v. Montgomery, 262 F.3d 233, 242 (4th Cir. 2001) (internal
citation omitted); see also Griffin v. United States, 502 U.S.
46, 51 (1991) (“[I]t [is] regular practice for prosecutors to
charge

conjunctively,

in

one

count,

the

various

means

of

committing a statutory offense, in order to avoid the pitfalls
of duplicitous pleading.”); United States v. Perry, 560 F.3d
246, 256 (4th Cir. 2009) (“[W]hen the Government charges in the
conjunctive, and the statute is worded in the disjunctive, the
11

district

court

can

instruct

the

jury

in

the

disjunctive.”);

United States v. Robinson, 627 F.3d 941, 958 (4th Cir. 2010) (“It
is black letter law that duplicitous indictments can be cured
through appropriate jury instructions.”).
Here,

although

the

government

charged

Count

4

in

the

conjunctive in the indictment, the court instructed the jury in
the

disjunctive.

(ECF

No.

193,

at

35-36).

Additionally,

although the jury found the Defendant guilty of possessing a
firearm in furtherance of both a crime of violence and a drug
trafficking crime, the Defendant was not convicted of more than
one count under 18 U.S.C. § 924(c).
contention,

he

was

not

separate 924(c) crimes.”

charged

Contrary to Petitioner’s

with

and

convicted

(ECF No. 310-1, at 22).

of

“two

Therefore,

counsel was not ineffective for failing to argue that Petitioner
was

“illegally

charged”

as

to

Count

4

nor

was

Petitioner

prejudiced as a result.
Additionally, Petitioner argues that “counsel after trial
and

on

appeal

should

have

argued

that

[C]ount

4

was

not

supported by the evidence of the jury’s verdict” because Count 4
was

“specifically

tied

to

[C]ounts

1

and

2

which

furtherance of five kilograms or more of cocaine.”
310-1, at 23-24).

was

in

(ECF No.

Counsel made this argument in a post-trial

motion for a judgment of acquittal and for a new trial (ECF No.
217, at 3-4), which the court denied, finding that there was
12

sufficient evidence on Counts 1 and 2 to support Count 4 (ECF
No. 281, at 40).
Petitioner does not show how making his proposed argument
on

appeal

would

Therefore,

have

Petitioner

been
has

stronger

failed

to

than

those

establish

presented.

that

counsel

rendered ineffective assistance on appeal.
III. Motions to Amend or Supplement
The

Anti–Terrorism

and

Effective

Death

Penalty

Act

(“ADEPA”) imposes a one-year statute of limitations on § 2255
motions brought by federal prisoners.

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.
U.S.C.

§

2255(f)(1).

Here,

Petitioner’s

convictions

28

became

final when his petition for writ of certiorari was denied by the
Supreme

Court

on

October

3,

2016.

Clay,

537

U.S.

at

527.

Petitioner’s motions to amend or supplement his motion to vacate
sentence were filed more than one year later.
allegations

can

only

be

considered

if

they

As a result, the
relate

back

to

Petitioner’s original motion under Fed.R.Civ.P. 15(c)(1), or if
another statutory provision renders the filing timely.
Petitioner raised one new challenge in his first motion to
amend; specifically, he argues that counsel was ineffective for
failing to raise the issue that there was insufficient evidence
13

to support Petitioner’s conviction as to Count 4 because the
mere presence of a weapon at the scene of a drug crime, without
more,

is

insufficient

to

prove

possession

furtherance of a drug trafficking crime.
6).
same

of

a

firearm

in

(ECF No. 334, at 2,

Generously read, this claim can be said to arise out of the
“conduct,

transaction,

or

occurrence”

set

out

in

Petitioner’s original § 2255 motion, which alleges ineffective
assistance of counsel during trial, post-trial, and on appeal.
Fed.R.Civ.P.
amend

or

15(c)(1)(B).

supplement

his

Therefore,
motion

to

Petitioner’s

vacate

motion

sentence

will

to
be

granted and his additional argument will be considered with the
arguments asserted in his initial § 2255 motion.
Petitioner argues that counsel should have raised the issue
that there was insufficient evidence to support his conviction
for possession of a firearm in furtherance of a drug trafficking
crime because the mere presence of a weapon at the scene of a
drug crime, without more, is insufficient to prove possession.
(ECF No. 334, at 2, 6).

Counsel made this argument in a post-

trial motion for a judgment of acquittal and for a new trial
(ECF No. 217, at 3-4), which the court denied, finding that
there was sufficient evidence on Counts 1 and 2 to support Count
4 (ECF No. 281, at 40).

Petitioner does not show how making his

proposed argument on appeal would have been stronger than those

14

presented.

Therefore, Petitioner has failed to establish that

counsel rendered ineffective assistance on appeal.
In his second motion to supplement, Petitioner complains
that his conviction in Count 4 under 18 U.S.C. § 924(c) is
unconstitutional and, based on an asserted concession made by
the Government at oral argument before the Supreme Court in
United States v. Davis, 139 S.Ct. 2319 (2019), his “stash house
sting” conviction cannot stand.5

(ECF No. 346, at 2-3).

In the third motion to supplement, Petitioner relies on
United

States

v.

Davis

to

argue,

again,

that

conspiracy

commit Hobbs Act robbery is not a crime of violence.

to

(ECF No.

352-1, at 3-6).
Both of these proposed supplements seek to challenge the
viability of the § 924(c) conviction because the conviction in
Count 1 no longer qualifies as a crime of violence.

There are

several reasons why these claims provide no avenue of relief.
First,
Circuit

the

issue

explicitly

was

raised

upheld

on

the

direct

appeal.

conviction

on

The
Count

Fourth
4

even

assuming there was some deficiency in considering Count 1 as a
crime of violence.

Petitioner was convicted also of a drug

trafficking crime in Count 2, and the verdict on Count 4 was
5

The purported concession was that the Government might
lose cases at trial based on the specific facts of a case if the
crime of violence issue was presented to a jury. Tr. April 17,
2019, at 66.
The Court rejected the Government’s proposal and
adopted instead the categorical approach.
15

based on that as well.

Ordinarily, an issue raised and decided

on direct appeal on its merits cannot be raised again in a
§ 2255 petition.

Runyon v. United States, 228 F.Supp.3d 569,

588 (E.D.Va. 2017), appeal docketed, No. 17-5 (4th Cir. Aug. 21,
2017).

Petitioner may contend, however, both that the issue was

not decided on its merits and that exceptional circumstances are
present due to a change in substantive law.

Even if timely and

not foreclosed by the direct appeal, the supplement still fails
to provide an avenue for relief.

It is now established that

conspiracy to commit a Hobbs Act robbery is not a crime of
violence for § 924(c) purposes.

United States v. Simms, 914 F.

3d 229 (4th Cir. 2019).

The drug trafficking crime in Count 2

remains

and

valid,

conviction.

however,

it

still

supports

the

§

924(c)

There is no ambiguity in the record in this case.

The special verdict form states that the § 924(c) conviction
rests on both predicates.
IV.

Conclusion
For

supplement

the

foregoing

Petitioner’s

reasons,
motion

to

the

motions

vacate

to

sentence

amend

or

will

be

granted and the motion to vacate sentence filed by Petitioner
Shane Hare will be denied.
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
16

final

order

adverse

to

the

petitioner.

A

certificate

of

appealability is a “jurisdictional prerequisite” to an appeal
from the court’s order.
659 (4th Cir. 2007).

United States v. Hadden, 475 F.3d 652,

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
reasonable

satisfies
jurists

this

would

constitutional

claims

McDaniel,

U.S.

529

standard

find

the

debatable

473,

484

by

demonstrating

court’s

or

assessment

wrong.

(2000);

see

See
also

that

of

the

Slack

v.

Miller–El

v.

Cockrell, 537 U.S. 322, 336–38 (2003).
Upon

its

review

of

the

record,

the

court

Petitioner does not satisfy the above standard.

finds

that

Accordingly, it

declines to issue a certificate of appealability.

A separate

order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

17