Baxam v. USA - 2255
Filing
2
MEMORANDUM OPINION (c/e/m to USPO Lacy and c/m to Defendant Craig Baxam 2/2/21 sat). Signed by Judge Deborah K. Chasanow on 2/2/2021. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
CRAIG BENEDICT BAXAM
:
v.
:
Civil Action No. DKC 17-3413
Criminal No. DKC 12-0121
:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution is the motion to
vacate sentence filed by Petitioner Craig Baxam (“Petitioner”)
(ECF No. 94).
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.
I.
Background
On June 13, 2014, Petitioner waived indictment and pled
guilty, pursuant to a Fed.R.Crim.P. 11(c)(1)(C) plea agreement (a
“C-Plea”), to one count of destruction of records in contemplation
of a federal investigation.
Petitioner
was
sentenced
(ECF No. 62).
to
84
months’
punishment stipulated to in the C-Plea.
and 64).
imprisonment,
the
(ECF Nos. 62, at 4,
Petitioner’s second amended judgment was docketed on
March 19, 2014.1
1
On January 14, 2014,
(ECF No. 70).
Petitioner did not file a direct
Petitioner’s judgment was amended to reflect credit from
January 9, 2012 instead of January 6, 2012.
appeal.
Accordingly, Petitioner’s conviction became final on
April 2, 2014, at the latest, when his time to appeal expired.2
On October 25, 2017, Petitioner filed the instant motion to
vacate pursuant to 28 U.S.C. § 2255.3 (ECF No. 94). The government
was directed to respond and did so on January 17, 2018, arguing
that some of Petitioner’s claims should be dismissed as timebarred.
(ECF No. 98 at 3, 6-8, 10).
Petitioner was granted
twenty-eight days to show timeliness or entitlement to equitable
tolling and was also advised that he could file a reply to the
government’s other arguments.
(ECF No. 99).
granted
for
Petitioner’s
request
additional
Although the court
time
to
respond
2
United States v. Sanders, 247 F.3d 139, 142 (4th Cir. 2001),
held that a conviction became final for § 2255 purposes on the
date judgment was entered.
However, after the Supreme Court
decided Clay v. United States, 537 U.S. 522, 527 (2003), holding
that finality attaches when the time for filing a certiorari
petition expires, the Sanders holding has been called into
question. Most courts now assume that, when no appeal is taken,
a judgment becomes final when the time for filing such an appeal
expires, which is 14 days later. See Brown v. United States, ELH16-4075, 2017 WL 4946990, at *2 (D.Md. Nov. 1, 2017) (discussing
this approach and citing more recent authority).
The 14-day
difference does not impact the timeliness determination in the
instant case.
3
Petitioner asserts that this is the date he placed his
motion in the prison mailing system. (ECF No. 94 at 14). Because
Petitioner was incarcerated at the time, he is entitled to the
benefit of the prison mailbox rule, which provides that a
prisoner’s filing of a court document is complete on the date he
or she gives the document to prison officials for mailing. See
Houston v. Lack, 487 U.S. 266, 270-72 (1988).
2
(ECF No. 105), Petitioner has not filed any such response, and the
time for doing so has expired.
During the pendency of this motion, Mr. Baxam was released
from prison to a five-year term of supervised release.
This does
not moot the matter as “custody” is determined when the petition
is filed, United States v. Swaby, 855 F.3d 233, 238-39 (4th Cir.
2017) (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)), and,
moreover, “a prisoner on supervised release is considered to be
‘in custody’ for the purposes of a § 2255 motion.”
Id. (quoting
United States v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999)).
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 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).
3
B.
Timeliness
The government argues that many of Petitioner’s claims should
be dismissed as time-barred. (ECF No. 98, at 3, 6-8, 10). Pursuant
to 28 U.S.C. § 2255(f), a federal prisoner must file a motion to
vacate, set aside, or correct his sentence within one year of the
latest of the following dates:
(1) the date on which the judgment of
conviction becomes final;
(2) the date on which the impediment to
making a motion created by governmental action
in violation of the Constitution or laws of
the United States is removed, if the movant
was prevented from making a motion by such
governmental action;
(3) 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; or
(4) the date on which the facts
supporting the claim or claims presented could
have been discovered through the exercise of
due diligence.
C.
Ineffective Assistance of Counsel
1.
Legal Standard
To
establish
ineffective
assistance
of
counsel,
the
petitioner must show both that his attorney’s performance fell
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
4
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).
A determination need not be made concerning
the attorney’s performance if it is clear that no prejudice could
have resulted from it.
Strickland, 466 U.S. at 697.
In the context of a § 2255 petition challenging a conviction
following a guilty plea, a defendant establishes prejudice by
demonstrating “a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985);
accord United States v. Mooney, 497 F.3d 397, 401 (4th Cir. 2007).
Moreover, Petitioner “must convince the court” that such a decision
“would have been rational under the circumstances.”
Kentucky, 559 U.S. 356, 372 (2010).
preferences,
therefore,
are
not
Padilla v.
“The challenger’s subjective
dispositive;
what
matters
is
whether proceeding to trial would have been objectively reasonable
in light of all of the facts.”
United States v. Fugit, 703 F.3d
248, 260 (4th Cir. 2012).
A petitioner who pleads guilty has an especially high burden
in establishing an ineffective assistance claim.
As the Supreme
Court of the United States explained, “[t]he plea process brings
to the criminal justice system a stability and a certainty that
must not be undermined by the prospect of collateral challenges in
cases . . . where witnesses and evidence were not presented in the
5
first place.”
Premo v. Moore, 562 U.S. 115, 132 (2011).
Thus, a
petitioner alleging ineffective assistance in the context of a
guilty plea must meet a “substantial burden . . . to avoid the
plea[.]”
Id.
2.
Analysis
a.
Suspension of Pension Benefits
Petitioner
first
argues
that
counsel
was
ineffective
by
failing to disclose that Petitioner’s guilty plea would suspend
his pension payments.
(ECF No. 94, at 4).
It appears that
Petitioner seeks to overcome the statutory time-bar in § 2225(f)
by stating that he discovered such information on November 23,
2016, when he received a letter from BAE Systems Employees’
Retirement Plan stating that “due to [Petitioner] pleading guilty
to
destroying
records
in
contemplation
of
a
terrorism
investigation by the Federal Bureau of Investigation[,]” it must
suspend Petitioner’s benefit payments until it concluded that it
could do so without violating federal law.
94-1).
(ECF Nos. 94, at 4 and
The government concedes that Petitioner’s claim is timely
pursuant
to
§
2255(f)(4).
However,
the
government
responds
correctly in opposition that Petitioner has not satisfied the
standard
for
proving
ineffective
assistance
of
counsel.
Petitioner has not even alleged that but for counsel’s alleged
errors, he would not have accepted the plea offer and would have
insisted
on
going
to
trial.
Therefore,
6
Petitioner
has
not
established prejudice and his ineffective assistance claim fails
on this basis.
b.
FOIA Waiver
Petitioner also alleges that counsel was ineffective for
failing to disclose that, by signing the plea agreement, his rights
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
would be waived.
(ECF No. 94, at 4-5).
Petitioner attempts to
overcome the statutory time-bar by alleging that he recently
discovered this information when he received a letter to that
effect on September 25, 2017, from the Executive Office for United
States Attorneys FOIA and Privacy Act Staff.
and 94-3).
(ECF Nos. 94, at 5,
However, the plea agreement specifically states:
Your client waives any and all rights
under the Freedom of Information Act relating
to the investigation and prosecution of the
above-captioned matter (relating to both the
charges filed in the indictment and the
information in this matter) and agrees not to
file any request for documents from this
Office or any investigating agency.
(ECF No. 62, ¶ 10(d)).
Petitioner signed the plea agreement, next
to where it attests that he read the agreement, carefully reviewed
every part of it with his attorney, understood it, and voluntarily
agreed
to
it.
At
his
Rule
11
hearing,
Petitioner
answered
affirmatively that he had read and signed the plea agreement. (ECF
No. 68, at 12-13). Therefore, Petitioner did not recently discover
that he was waiving his FOIA rights, and his ineffective assistance
7
claim on this basis is untimely.
Even if timely, this claim fails
on its merits as Petitioner was informed when he signed the plea
agreement that he would be waiving his FOIA rights.
c.
Discovery Agreement
Petitioner argues that counsel was ineffective because she
did not adequately explain “the government’s discovery agreement
dated 20 June[,] 2012[,] and [Petitioner] did not fully understand
said
discovery
agreement
until
receiving
a
copy
.
.
.
[of]
counsel’s response letter to the Florida State Bar on 14 July
2017.” (ECF No. 94, at 5). It appears that Petitioner is referring
to a discovery agreement between his counsel and the government
that provides that the government would provide discovery to
defense counsel “on the condition that counsel will not give copies
of this material to the client or to anyone outside counsel’s
office, absent approval” from the government.
at 6-7).
(ECF No. 94-2,
Even assuming this claim is timely under § 2255(f)(4),
Petitioner’s claim fails because he has not alleged that had he
been aware of the discovery agreement, he would not have pled
guilty and would have insisted on going to trial.
Petitioner
has
not
established
prejudice
and
his
Therefore,
ineffective
assistance claim fails on this basis.
d.
FBI Documents
Petitioner also alleges that his counsel was ineffective by
failing to discover every FBI record pertaining to him.
8
(ECF No.
94, at 5).
Petitioner alleges that he discovered the amount of
FBI records on file on July 20, 2017, when he received a response
to
his
improper
FOIA
request,4
stating
that
the
FBI
has
approximately 120,301 pages of records potentially responsive to
his request.
(ECF Nos. 94, at 5 and 94-4, at 1).
Petitioner says
that the government did not disclose these files to his attorney,
which is “a clear Brady violation[.]”
(ECF No. 94, at 5).
The government states in its opposition that it contacted the
FBI with respect to Petitioner’s FOIA request and was informed
that
the
large
number
of
records
the
FBI
has
consists
of
information contained in 12 CDs/DVDs obtained from Petitioner.
(ECF No. 98, at 7-8).5
Petitioner does not allege that any of this
information is exculpatory, and, moreover, the records do not
contain
any
information
that
Petitioner
was
not
aware
of.
Therefore, Petitioner’s ineffective assistance claim on this basis
is without merit.6
4
Pursuant to the plea agreement, Petitioner agreed that he
would not file any request for documents pertaining to this case
with any investigative agency. (ECF No. 62, ¶ 10(d)).
5
The government explains that “[w]hen the FBI receives
digital evidence and a FOIA request is made, it makes an estimate
of the number of ‘pages’ a conversion from digital to paper form
would create.”
6
Petitioner raises this argument again in his second claim
alleging Brady and Jencks Act violations.
(ECF No. 94, at 6).
Petitioner’s Brady claim fails for the same reasons. Additionally,
Petitioner has not pleaded any facts with respect to a Jencks Act
violation. Under the Jencks Act, 18 U.S.C. § 3500, upon motion
9
e.
Safety Valve Reduction
Finally, Petitioner alleges that his counsel was ineffective
for failing to request a sentencing reduction under the “safety
valve” provision of 18 U.S.C. § 3553(f).
(ECF No. 94, at 5).
Petitioner’s claim on this basis is time-barred and must be
dismissed.
Moreover, even if timely, Petitioner’s claim fails
because § 3553(f) only applies to sentencing for certain drug
offenses and does not apply to his sentence.
sentenced
under
the
Guidelines
stipulated to in the C-Plea.
and
Petitioner was not
received
the
sentence
Petitioner has not established
ineffective assistance of counsel and his motion to vacate sentence
on this basis will be denied.
D.
Supervised Release Conditions
Petitioner alleges that it was an abuse of the court’s
discretion to grant a request filed by the United States probation
office to modify Petitioner’s supervised release conditions.
He
argues that his consent to the request to modify his conditions of
supervised release was signed involuntarily and without counsel in
violation of his Sixth Amendment rights.
probation
office
subsequently
(ECF No. 94, at 8).
requested
the
removal
of
The
the
from the defendant, the government must produce any statement of
a government witness in its possession after the witness testifies
on direct examination. The Jencks Act does not apply to this case
which did not go to trial and was resolved by a guilty plea.
10
modified conditions, which was granted on November 15, 2017.
(ECF No. 93).
E.
This claim fails as moot.
Offense Level Reduction
Lastly, Petitioner claims that he agreed to a three-level
offense level reduction but only received a two-level reduction in
the C-Plea.
Petitioner alleges that he discovered the difference
in offense level reduction on July 14, 2017, when he received a
copy of the discovery agreement between his counsel and the
government.7
claim fails.
(ECF No. 94, at 9).
Even if timely, Petitioner’s
Paragraph 9 of the discovery agreement drafted by
the government states, “Please note that it is the policy of this
Office that the government will not stipulate to a three-level
reduction in offense level pursuant to §3E1.1 of the United States
Sentencing Guidelines unless the defendant has entered into a
signed written plea agreement with the government on or before the
date set for the filing of pretrial motions.”
at 7).
(ECF No. 94-2,
This section only stipulates the conditions by which the
government would not stipulate to a three-level reduction; nowhere
7
Although the government asserts that this claim is timebarred, this may not be the case. The “factual basis” underlying
Petitioner’s claim was not discovered until he received a copy of
the discovery agreement in 2017, within the same year that he filed
this motion. It is unclear from the papers whether the discovery
agreement was available through the exercise of due diligence to
Petitioner before this time, and the date of availability, rather
than actual discovery, is the relevant date for purposes of
§ 2255(f)(4)’s triggering date.
11
does the agreement state that the government will stipulate to a
three-level reduction under § 3E1.1.
Petitioner did not satisfy
the prerequisite because he did not plead prior to the filing of
motions.
Additionally, the plea agreement states that the parties
stipulate to a two-level reduction pursuant to § 3E1.1.
62, ¶ 6(a)).
(ECF No.
The closing paragraph states
This
letter
supersedes
any
prior
understandings,
promises,
or
conditions
between this Office and your client and,
together
with
the
Sealed
Supplement,
constitutes the complete plea agreement in
this case.
Your client acknowledges that
there are no other agreements, promises,
undertakings[,] or understandings between him
and this Office other than those set forth in
this letter and the Sealed Supplement and none
will be entered into unless in writing and
signed by all parties.
(Id., ¶ 14) (emphasis added).
Therefore, even if the discovery
agreement, dated July 20, 2012, stated that the government would
agree to a three-level adjustment under § 3E1.1, the plea agreement
dated January 4, 2014, provides that its terms control over any
contrary agreement and thus Petitioner’s argument fails.
III. Conclusion
For the foregoing reasons, the motion to vacate sentence filed
by Petitioner Craig Baxam 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 final
12
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
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
(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).
After review of the record, it is clear that Petitioner does
not satisfy the above standard.
appealability will not issue.
Accordingly, a certificate of
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
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