Tatum v. USA - 2255
Filing
2
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/2/2021. (dg3s, Deputy Clerk)
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 1 of 50
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
UNITED STATES OF AMERICA
:
v.
:
Criminal No. DKC 13-0492-001
Civil Action No. DKC 18-0002
:
ANTHONY TORELL TATUM
:
MEMORANDUM OPINION
Petitioner’s motion to vacate, set aside, or correct sentence
pursuant
to
28
U.S.C.
§
2255
is
ready
for
resolution.
(ECF
No. 425).
Also pending are two subsequent filings from Petitioner
that
properly
are
construed
as
supplements to his § 2255 motion.
motions
for
leave
to
(ECF Nos. 538 and 561).
file
The
issues have been briefed, and the court now rules, no hearing being
deemed necessary.
Local Rule 105.6.
For the following reasons,
Petitioner’s motion will be denied, and, while the motions to
supplement will be granted, the relief they seek will be denied.
I.
Background
On February 24, 2014, Mr. Anthony Torell Tatum (“Petitioner”)
was
charged
(ECF No. 24).
in
an
eight-count
superseding
indictment.
On December 30, 2014, Petitioner entered a guilty
plea to three of the charges — count 1: Conspiracy to Distribute
and Possess with Intent to Distribute Five Kilograms or More of
Cocaine and One Hundred Grams or More of Heroin in violation of 21
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 2 of 50
U.S.C. § 846; count 7: Possession of a Firearm in Furtherance of
a Drug Trafficking Offense in violation of 18 U.S.C. § 924(c); and
count 8: Conspiracy to Commit Money Laundering in violation of 18
U.S.C. § 1956.
(No. 94).
On July 23, 2015, he was sentenced to
324 months’ imprisonment, consisting of 264 months on count one,
240 months concurrent on count eight, and a consecutive 60 months
on count seven. (ECF No. 211).
On July 29, 2015, Petitioner filed a notice of appeal to the
Fourth Circuit.
(ECF No. 213).
The Fourth Circuit subsequently
appointed Richard Finci to represent Mr. Tatum in his appeal, the
same attorney who had represented him during his plea negotiations,
the entry of his plea, and at sentencing.
June 10,
2016,
the
Fourth
sentence against Mr. Tatum.
Circuit
affirmed
(ECF No. 355).
(ECF No. 217).
the
judgment
and
Twelve days later,
the court stayed its mandate pending a motion for rehearing.
No. 359).
On
(ECF
While this request was pending, Petitioner also filed
a motion to withdraw his guilty plea in this court on August 4,
2016.
(ECF No. 371).
On October 12, 2016, the Fourth Circuit
denied Petitioner’s request for a rehearing.
389).
(ECF Nos. 388 and
On November 3, 2016, the Fourth Circuit issued its mandate.
(ECF No. 391).
Four days later, this court issued an opinion and
order denying Mr. Tatum’s motion to withdraw his guilty plea.
Mr. Tatum continued to fight his conviction on multiple
fronts.
First, Petitioner appealed the order denying his motion
2
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to withdraw the guilty plea on December 9, 2016.
(ECF No. 395).
Second, on January 12, 2017, the court received notice from the
Supreme Court that Mr. Tatum had filed a petition for writ of
certiorari on his original appeal a few days earlier.
398).
(ECF No.
On February 21, 2017, the Court denied this petition, thus
finalizing Mr. Tatum’s conviction. (ECF No. 408).
See United
States v. Segers, 271 F.3d 181, 185-86 (4th Cir. 2001) (“The courts
of appeals to address the issue have consistently concluded that
a judgment of conviction becomes final under § 2255 (f)(1) when
the Supreme Court denies certiorari.”).
The same day this entry
was made, the Fourth Circuit affirmed the denial of Petitioner’s
motion to withdraw his guilty plea, and this ruling took effect on
March 16, with the issuance of the Fourth Circuit’s mandate.
(ECF
Nos. 407 and 410).
On January 4, 2018, Petitioner timely filed the currently
pending motion to vacate, set aside, or correct sentence.
No. 425).
(ECF
More than two years later, on July 6, 2020, Mr. Tatum
filed a motion that attempted to supplement his petition.
It was
docketed as, and will be construed as, a motion for leave to file
a supplemental § 2255 motion.
The motion cites to recent Supreme
Court caselaw as a basis for its claim and its timeliness.
No. 538).
(ECF
A few months later, on November 12, Petitioner filed
another attempted supplement that will similarly be treated as a
3
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motion
for
sentence.
II.
leave
to
supplement
his
motion
to
vacate/correct
(ECF No. 561) (filed under seal).
Motion to Vacate
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.”
of
28 U.S.C. § 2255(a).
non-constitutional
error
is
more
“[T]he scope of review
limited
than
that
of constitutional error; a non[-]constitutional error does not
provide a basis for collateral attack unless it involves ‘a
fundamental
defect
which
inherently
results
in
a
complete
miscarriage of justice,’ or is ‘inconsistent with the rudimentary
demands of fair procedure.’” United States v. Mikalajunas, 186
F.3d 490, 495–96 (4th Cir. 1999) (internal citations omitted).
A pro se movant is entitled to have his arguments reviewed
with appropriate consideration.
1147, 1151–53 (4th Cir. 1978).
See Gordon v. Leeke, 574 F.2d
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).
4
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B.
Ineffective Assistance of Counsel Legal Standard
The bulk of Petitioner’s motion rests on various alleged
deficiencies in the performance of his former counsel, Mr. Finci.
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 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
5
Padilla v.
“The challenger’s subjective
dispositive;
what
matters
is
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 6 of 50
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
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.
C.
Alleged Coercion in the Plea Negotiations
While Petitioner’s motion to vacate is fifty-three pages, not
counting its numerous attachments, a large portion of it is
animated by a single claim:
Petitioner alleges that Mr. Finci was
ineffective by allowing the government “to coerce” him into “waving
his rights” by entering the plea agreement.
In
particular,
Mr.
Tatum
asserts
(ECF No. 425, at 52).
that,
during
his
plea
negotiations, prosecutor Deborah Johnston told him, “if you don’t
accept some type of plea agreement and if you decide to go to
trial, I will make sure that I pick the whitest, most conservative
jurors from the counties in Maryland that you have never heard of
6
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before.”
(Id. at 3) (quoting his first retelling of this incident
during his sentencing hearing, ECF 231, at 74).
Petitioner says
that he looked to his counsel for help when this threat was made,
but that his lawyer “looked back at him like a deer in the
headlights.”
The government quotes to a separate section of the motion to
explain how this alleged inaction of Mr. Finci serves as the
motion’s central thrust:
claims
of
ineffective
“At the broadest level, Petitioner’s
assistance
of
counsel
stem
from
his
contention that the Government engaged in ‘coercing [Petitioner]
into a plea of guilty and his attorney [] stood ideally [sic, idly]
by
and
failed
attention.’”
Mr.
Tatum
to
present
this
misconduct
to
the
Court’s
(ECF No. 457, at 5) (quoting ECF No. 425, at 20).
explains
that
he
raised
this
issue
in
a
pro
se
supplemental brief in the Fourth Circuit on direct appeal, which
he attaches to his motion.
He says all these arguments “were
available” for Mr. Finci to raise himself as his counsel, but he
failed to do so.
(ECF No. 425, at 51-52) (referencing and
attaching ECF No. 425-9).
1.
The Underlying Constitutional Claim
While the government frames the allegation of a coercive plea
as purely a claim of ineffective assistance of counsel, the claim
contains a separate and distinct constitutional element.
By
highlighting the racial nature of the alleged threat, Petitioner
7
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argues that “selective prosecution on the basis of race violates
due process.”
His conviction is therefore invalid, he argues, not
just because of his counsel’s failure to object to Ms. Johnston’s
statement and tactics during plea negotiations, but because such
tactics violate the Due Process Clause of the Fourteenth Amendment.
(ECF No. 425, at 14) (citing, among others, Bordenkircher v. Hayes,
434 U.S. 357 (1978)). This argument fits with his later assertion,
citing Brady v. United States 397 U.S. 742, 748 (1970), that his
plea was not entered into voluntarily.
(ECF No. 425, at 32).
Brady found that an otherwise properly entered plea could be
invalidated if “induced by threats (or promises to discontinue
improper harassment), misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that are by their
nature
improper
as
having
no
proper
prosecutor’s business (e.g. bribes).”
relationship
to
the
Id. at 755 & n.13 (quoting
Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957) (en
banc), rev’d on confession of error on other grounds, 356 U.S. 26
(1958)).
To show such a constitutional defect, Petitioner must
show by a preponderance that his plea was induced by an improper
threat of this kind.
2.
Mr.
Analysis
Tatum
constitutional
is
or
foreclosed
ineffective
from
making
assistance
claim
either
for
this
similar
reasons; at his plea hearing, the time dedicated to raising this
8
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kind of objection, Petitioner said, under oath, that his plea was
entered into voluntarily and without coercion and that he was happy
with his current counsel.
As to the constitutional elements of
his claim, he has not proven by a preponderance that his due
process rights were violated, even if this alleged threat was made,
as his statements at sentencing make clear.
By knowingly entering
into a plea that he did not view as coercive at the time, Mr. Tatum
cannot claim it is coercive now.
The government asserts that Petitioner’s sworn statements at
his plea contradict this claim.
foreclose the claim.
While true, this does not fully
Normally, “in the absence of extraordinary
circumstances . . . allegations in a § 2255 motion that directly
contradict
the
petitioner’s
sworn
statements
made
during
a
properly conducted Rule 11 colloquy are always palpably incredible
and patently frivolous or false.”
United States v. Lemaster, 403
F.3d 216, 221 (4th Cir. 2005) (internal quotation marks omitted)).
But while Petitioner frames this claim as malicious prosecution,
as in Bordenkirscher, it is better viewed as an alleged improper
threat.
In this context, the Fourth Circuit has stated, “we have
no difficulty in concluding that a threat by a prosecutor to do
what the law will not permit, if it motivates a defendant ignorant
of the impossibility, renders the plea involuntary.”
Turner, 423 F.2d 897 (4th Cir. 1970).
9
Lassiter v.
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 10 of 50
Alternatively, a threat may be improper, even if not clearly
illegal to make or carry-out, and still strike at the heart of the
voluntariness of a plea.
The Fifth Circuit has explained:
As an alternative ground for vacating his
sentence,
appellant
contends
that
the
prosecuting attorney unlawfully induced him to
plead guilty by “venturing a guess” as to the
length of sentence appellant “could expect.”
Without denying that “implied promises” can
render a guilty plea involuntary, See United
States v. Pihakis, 545 F.2d 973 (5th Cir.
1977), appellant’s assertions here, even if
true, do not make out such a promise. See
United States v. Battle, 467 F.2d 569 (5th
Cir. 1972). Appellant makes the further claim,
however, that the prosecuting attorney induced
his guilty plea by threatening “to prosecute
appellant’s wife if he fought the case.” The
Government has not denied that it made such
threats; its position, which the court below
adopted, consistently has been that appellant
is “precluded” from making this argument
because he swore at his arraignment that his
plea was not the product of threats. The
Government overstates the law.
(T)he barrier of the plea or
sentencing
proceeding
record,
although
imposing,
is not
invariably
insurmountable.
In
administering the writ of habeas
corpus and its § 2255 counterpart,
the federal courts cannot fairly
adopt a Per se rule excluding all
possibility
that
a
defendant’s
representations at the time his
guilty plea was accepted were so
much the product of such factors as
misunderstanding,
duress,
or
misrepresentation by others as to
make
the
guilty
plea
a
constitutionally inadequate basis
for imprisonment.
10
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Blackledge v. Allison, 431 U.S. 63, 74-75, 97
S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977)
(footnotes omitted). See Fontaine v. United
States, 411 U.S. 213, 93 S.Ct. 1461, 36
L.Ed.2d 169 (1973) (per curiam); United States
v. Sanderson, 595 F.2d 1021 (5th Cir. 1979)
(per curiam).
United States v. Nuckols, 606 F.2d 566 (5th Cir. 1979).
Following this logic, more recent caselaw has confirmed that
improper threats, made in certain circumstances, can provide the
kind of “extraordinary circumstances” that present an exception to
the otherwise binding nature of a petitioner’s statements at a
Rule 11 hearing.
This is true where a plea hearing purports to
confirm the plea’s voluntariness and petitioner’s awareness of its
consequences.
Building on this point, the Fourth Circuit has
explained:
Accordingly,
to
set
aside
a
plea
as
involuntary, a defendant who was fully aware
of the direct consequences of the plea must
show that (1) “some egregiously impermissible
conduct
(say,
threats,
blatant
misrepresentations, or untoward blandishments
by government agents) antedated the entry of
his plea” and (2) “the misconduct influenced
his decision to plead guilty or, put another
way, that it was material to that choice.”
Fisher v. United States, 711 F.3d 460, 465 (4th Cir. 2013) (quoting
Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006) and
citing Brady, 397 U.S. at 755).
Petitioner alleges that his plea was involuntary because of
his belief that the prosecutor could and would make good on her
11
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threat, despite its impropriety.
Petitioner writes, “As [Mr.]
Tatum understood it, were he to proceed to trial with the ‘whitest’
jury in the Maryland counties he would have [been] sentenced to a
minimum of 30[]years.”1
(ECF No. 425, at 39).
Similarly, he
writes, “[Mr.] Tatum has no reason to disbelieve that Johnston
would not make her threats a reality.”
(Id., at 16).
But had he
been properly advised, Petitioner implies, he would have known
that to empanel such a jury would likely be unconstitutional, even
if the threat itself was found not to be.
See Berghuis v. Smith,
559 U.S. 314, 327 (2010) (discussing the “fair-cross section
requirement”).
The
thorny
constitutional
questions
this
analysis
would
present need not be faced, however, as Petitioner fails to show
that, even if Ms. Johnston’s comment constitutes “egregiously
impermissible” conduct predating the plea agreement, it did not
affect his decision to plead guilty, even as he railed against the
alleged misconduct at sentencing.
During Petitioner’s re-arraignment hearing on December 30,
2014, he was asked “Have you been threatened in any way?”
responded: “No. No, Your Honor, no one threatened me.
1
He
This is the
As explained more below, however, the specific fear
surrounding a potential thirty-year mandatory minimum appears to
emanate, not from this alleged threat, but from the potential
penalty under 18 U.S.C. § 924(c)(1)(B)(ii) charged in the
Superseding Indictment.
12
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only
deal
that
I
was
offered.”
Mr.
Tatum
was
specifically about the conduct of the government:
then
asked
“But have you
been pressured because you fear retribution or injury of yourself
or anyone else in any way, shape, or form, that you’ve been
pressured into pleading? . . . You haven’t been?”
responded, “No, Your Honor.”
He again
(ECF No. 450, at 40).
As the
government recounts, he was also asked whether he was given enough
time to talk to Mr. Finci and if he was satisfied with his help in
the case.
He said yes to both questions and explained that he had
discussed the plea with his counsel some four or five times.
(ECF
No. 457, at 7-8) (citing ECF No. 450, at 42-43).
It was not until his sentencing months later, during Mr.
Tatum’s allocution (at the end of the hearing), that he raised
this claim regarding Ms. Johnston’s conduct.
It is clear that Mr.
Tatum was aware of this threat before he agreed to accept a plea
agreement,
as,
negotiations.
by
his
own
telling,
it
occurred
during
plea
Moreover, it is clear that Petitioner immediately
found this comment improper, as he stated at sentencing, “Needless
to say, I was recoiled by her comment and I was disgusted at the
blatant racism that she displayed in front of everyone.”
(ECF No.
231, at 74).
Nonetheless,
these
comments
were
couched
in
his
larger
attempt to rehabilitate his own character, as an allocution is
meant to do, not to disown his guilty plea.
13
In these statements
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 14 of 50
he railed against what he felt was an unfair caricature of him by
the government.
(See ECF No. 231, at 73) (“I am not this pitiful
character that the government created.”).
He contrasted this with
the “coercive power of authority” that he believed Ms. Johnston
had wielded as an abuse of her position.
He lamented that, “Mrs.
Johnston doesn’t know me and she doesn’t really care to know me.”
He argued that the entire case was aimed instead at his codefendant
Mr. Ford-Bey — evidenced by the fact that he alleges the prosecutor
often “constantly” got their names confused.
Nonetheless, he ends
these statements by saying, “All I ever wanted to do was accept
responsibility for my own actions, and that’s it, so I can put
this behind me.”
At
the
(Id. at 74-75).
time,
Petitioner
meant
merely
to
highlight
Ms.
Johnston’s alleged misconduct, either in the hopes that the court
would punish her, or that it would contrast with the goodwill he
has fostered in his community, or both.
allegations,
he
reaffirmed
responsibility and move on.
his
Even as he made these
willingness
to
accept
Petitioner did subsequently appeal
his conviction to the Fourth Circuit.
But Petitioner’s brief by
counsel filed on December 21, 2015, did not raise the alleged
threat as a challenge to the conviction.
Instead, Mr. Finci
primarily argued that the “district court erred in holding Mr.
Tatum responsible for more than 150 kilograms of cocaine” and that
the government had put forth inadequate evidence to support its
14
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findings.
The arguments also attempted to highlight that the vast
amount of evidence demonstrated Mr. Ford-Bey’s involvement in the
drug conspiracy, not Mr. Tatum’s involvement.
It was not until two months later that Mr. Tatum tried to
raise this issue in the appellate court in a pro se supplemental
brief filed on February 1, 2016.
Both this brief and two more
that Mr. Tatum subsequently filed highlight his accusation against
Ms.
Johnston
and
quote
to
his
allocution
at
sentencing.
In
rejecting the appeal, however, the appellate court refused to reach
the merits of the issues presented in the supplemental briefs,
noting that Petitioner had counsel and therefore he did not file
them properly.
United States v. Tatum, 651 Fed.Appx. 244, 246 (4th
Cir. 2016) (citing, among others, United States v. Penniegraft,
641 F.3d 566, 561 n.1 (4th Cir. 2011)), aff’d by 658 Fed.Appx. 688
(4th Cir. 2016).
On August 4, 2016, Mr. Tatum moved to withdraw his guilty
plea in this court, citing “fraud on the court.”
Unlike his
supplemental briefs in the Fourth Circuit, however, this motion
centers around various other complaints with Ms. Johnston that
have nothing to do with her alleged threat regarding an all-white
jury.
In particular, Mr. Tatum expresses frustration not only
with the fact that she had argued at sentencing that he was equally
responsible for the admitted crimes as Mr. Ford-Bey, but also that
his other codefendant, Andracos Marshall, had actually received a
15
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lower sentence than he had despite going to trial and not accepting
responsibility
for
the
crime.
Ms.
Johnston
also
allegedly
committed “fraud” by arguing that Mr. Tatum was less culpable than
Mr. Marshall in the latter’s trial but arguing that he was “wholly
responsible” for the drugs at his own sentencing.
(ECF No. 371).
This motion was denied on November 7, 2016, because Fed.R.Crim.P.
11(e) bars the withdrawal of a guilty plea after sentencing,
leaving “direct appeal” or “collateral attack” as the only avenues
left for Mr. Tatum to raise such claims.
(ECF No. 392).
Petitioner subsequently appealed the denial of this motion to
the Fourth Circuit, as well.
(ECF No. 395).
Strangely, this
appeal not only reiterates Mr. Tatum’s arguments involving Mr.
Marshall’s comparative involvement in the conspiracy, but reraised the previously discussed threat, even though his underlying
motion did not.
The unpublished opinion affirming the denial of
this motion says simply that the Fourth Circuit judges “have
reviewed the record and find no reversible error.”
United States
v. Tatum, 677 Fed.Appx. 140, 141 (4th Cir. 2017) (per curiam).2
All this history demonstrates that Petitioner’s ire towards
Ms. Johnston has taken on various forms throughout this case. When
2
Unlike the Fourth Circuit’s adjudication of Petitioner’s
first appeal, it is not clear whether the court reached the merits
of this claim this time.
The court will give Petitioner the
benefit of this ambiguity as, regardless, the claim is without
merit.
16
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Petitioner entered the plea and was sentenced, he seems only to
have viewed the claimed threat as part of her larger, alleged
misconduct as a prosecutor.
He only raised this particular
incident as a means to withdraw his guilty plea after that plea
was voluntarily and knowingly entered at a Rule 11 hearing, and
inconsistently even then.
Even though this alleged threat (and
his indignation over it) would have occurred prior to the plea (if
true), he fails to show that it influenced his decision to enter
that plea.
He knew, of course, of the conduct, claims to have
known it was improper, has not shown that his counsel gave him
incorrect
advice,
and
said
under
oath
that
he
had
not
been
threatened or coerced. The ineffective assistance of counsel claim
highlighting
counsel’s
response,
or
lack
thereof,
prosecutor’s alleged, improper threat will be denied.
to
the
The related
constitutional claim attacking the plea as coerced will also be
denied.
D.
The “Machinegun”
Mr. Tatum separately alleges that Mr. Finci was ineffective
because he failed to “move to dismiss the [superseding] indictment”
based
on
the
fact
that
the
“supposed
firearm”
was
not
a
“machinegun,” as the government was claiming, and was ineffective
in his failure to investigate this charge. (See ECF No. 24, “COUNT
SEVEN”).
He argues he “never had a machinegun” so as to trigger
what he purports was a threatened thirty-year mandatory minimum
17
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for this charge under 18 U.S.C. 924(c)(1)(B)(ii).
Mr. Finci’s
suggestion, that a plea “would result in just a five (5) year
statutory minimum” by comparison, therefore “skewed” his thought
process. He writes, “had Tatum not been forced away from his right
to trial[,] he would have been acquitted of that count.”
425, at 22-23).
(ECF No.
But the history recounted in Petitioner’s filings
is not borne out by the actual record, nor is there evidence of
any misapprehension on his part about his gun charge carrying a
thirty-year mandatory minimum prior to his plea.
The original indictment charged Mr. Tatum, in count three,
with possession of a firearm in furtherance of a drug trafficking
offense, between August 29, 2013 and September 5, 2013, and
referred specifically to a loaded Glock Model 30 semi-automatic 45
caliber handgun in a storage unit in Temple Hills.
reference was to 18 U.S.C. § 924(c).
The statutory
He was also charged with two
counts of being a felon in possession of a firearm, for the AK-47
type assault rifle found in the Ft. Washington storage unit on
August 27 in count two, and the Glock in count four.
(sealed)).
(ECF No. 9
The Superseding Indictment altered the charge for
possession of a firearm in furtherance of drug trafficking, moving
it to count seven, expanding the date range to September 6, 2013,
but deleting any reference to a specific firearm or location, and
changing the statutory reference to 18 U.S.C. § 924(c)(1)(B)(ii).
(ECF No. 24).
Despite that statutory reference, the Speedy Trial
18
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 19 of 50
form filed by the Government still stated that the penalty for
count 7 was 5 years to life.
Superseding
Indictment
also
(ECF No. 25 (sealed)).
contained
counts
for
felon
The
in
possession of the AK-47 in count thirteen and the Glock in count
fourteen.
At the arraignment on February 28, 2014, Magistrate Judge
Sullivan
referred
reference.
to
each
count
by
its
name
and
statutory
For count seven, he referred solely to 924(c).
He
then inquired whether Mr. Tatum understood the possible maximum
sentence
for
each
offense,
and
whether
he
was
aware
consecutive sentence required for the 924(c) offense.
state
what
either
the
mandatory minimum were.
maximum
sentences
or
the
of
the
He did not
consecutive
Mr. Tatum answered yes.3
In the run up to the anticipated trial, the Government
submitted proposed jury instructions and an amended verdict sheet.
For count seven, the Government did not mention “machine gun” and
was NOT proposing a special verdict on the nature of the “firearm.”
(ECF Nos. 90 and 92).
The plea agreement refers to count seven as
Possession of a Firearm in furtherance of a drug trafficking
offense and refers solely to 18 U.S.C. § 924(c), with no mention
of 924(c)(1)(B)(ii).
(ECF No. 95).
to both the AK-47 and the Glock.
The statement of facts refers
(ECF No. 95-1).
3
The Pre-Sentence
The proceeding was recorded on FTR. No transcript has been
prepared, but the recording is available on the court’s network.
19
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 20 of 50
Report
refers
to
count
seven
as
a
violation
of
18
U.S.C.
§ 924(c)(1)(A), although the cover sheet erroneously refers to a
10-year mandatory minimum.
The rest of the report correctly
reports a 5-year mandatory minimum. (ECF No. 142, ¶ 85).
On Page 20 of a 53 page motion, after excoriating the conduct
of the prosecutor for alleged racism, Mr. Tatum asserts that he
believed he had to plead guilty in order to avoid a mandatory
thirty-year sentence on count seven for possession of a machine
gun in furtherance of a drug trafficking crime.
at 20).
(ECF No 425,
On page 22, he explains:
Tatum had yet another concern regarding
the superseding indictment, that is, he was
charged with a “machinegun” under 18 U.S.C. §
924(c)(1)(B)(ii).
Tatum had reviewed the
Federal Code and learned that by itself he
could not receive less than thirty (30) years
for just this count.
When Finci informed
Tatum that a plea would result in just a five
(5) year statutory minimum, it too skewed
Tatum’s thought-process, in that, he never had
a machinegun. In that vein, Tatum never faced
the thirty (30) year mandatory minimum that
the indictment alleged. Consequently, had
Tatum not been forced away from his right to
trial he would have been acquitted of that
count.
Surely, this Court does not believe
that the “type” of weapon is not an element of
that count as charged under United States v.
O’Brien, 560 U.S. 218 (2010). On that note,
a review of Supreme Court precedent shows that
had Tatum been provided his right to trial the
Government would not have been free to simply
20
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 21 of 50
amend that indictment,
structural error.[4]
as
that
would
be
What should have occurred was for Finci
to move pre-trial to dismiss that indictment.
That is, since Finci knew—or should have known
that the firearm in count-seven was not a
“machinegun” the competent move was to move to
dismiss the indictment. Perhaps that decision
was based on the fact that Finci never
investigated whether this supposed firearm was
a “machinegun” and instead simply relied on
the
misconduct
in
Johnston’s
charging
decision[s].
Finci’s substandard performance surfaced
even before the superseding indictment, in
that, Tatum had requested Finci to file a
motion to suppress based on the fact the
ostensible drugs in the storage-unit were
based on an illegal search.
Finci informed
Tatum that since the storage unit was not
rented by him he had no standing under the
If not
Fourth Amendment.
See Exhibit-C.[5]
for Johnston’s threats and the information
regarding count-seven carrying a thirty (30)
statutory minimum, at trial Tatum could have
shown that, not only was he not the primary
renter of the unit, but video would have shown
4
Even if count seven is read as charging possession of a
firearm that is a machinegun, rather than any nonspecific firearm,
Mr. Tatum is wrong about the viability of a prosecution for a
lesser included offense.
Fed.R.Crim.P. 31(c)(1). Cf. United
States v. Kuzma, 967 F.3d 959, 977 (9th Cir. 2020)(possession of
machinegun is a lesser included offense of possession of an
unregistered machinegun); United States v. Hiraldo-Arzuaga, 2020
WL 3270298, *3 (D.P.R. June 16, 2020)(possession of a firearm is
lesser included offense of possession of a machinegun). And, an
error in the citation to a statute is not necessarily fatal to an
indictment. Fed.R.Crim.P. 8(c).
5
A motion to suppress was filed (ECF Nos. 13 and 50), the
Government argued lack of standing, but the court resolved the
motion on the merits and not for lack of standing, which presented
a complex issue. (ECF No. 438, at 24).
21
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 22 of 50
that more than three individuals accessed that
unit.
Mr. Tatum’s affidavit suggests that he did not discuss this
issue with Mr. Finci in detail until after he entered the plea:
Subsequent
to
Johnston’s
threats
I
investigated count seven and learned that it
carried a 30-year mandatory minimum. When I
reviewed the plea agreement it only contained
a statutory minimum of five-years and I
believed that it was in my best interest not
to go trial and risk receiving the 30-year
penalty that was charged in count-seven.
That, however, changed when I learned that
count-seven charged a “machinegun” and I never
had or was involved in or with such a weapon.
As such, when I brought it to Finci’s
attention he simply informed me that there was
no harm because I was only going to receive
five-years for that count.
I explained to
Finci that when I plead guilty to avoid the
statutory mandatory minimum 30-years that
would run consecutive to any other counts of
conviction that decision was on the belief
that Johnston could, somehow convict me of
having a “machinegun.” Finci never explained
to me that Johnston would not only have to
prove the § 924(c) elements, but also the type
of weapon involved. Had this been explained
to me at any stage of these proceedings I would
have insi[s]ted on going to trial.
(ECF No. 425-2, at 1, 3, the pages are out of order).
An email exchange attached as an Exhibit (ECF No. 425-7 at 3)
corroborates that understanding and contains the following:
From ANTHONY TORELL
2:20:40 PM wrote
TATUM
on
10/27/2016
Mr. Finci, Am I the only client that you have
ever conversed with via email inside of
federal prison within the past 7 years? I’m
sorry if my questions are not clear to you so
22
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 23 of 50
let me try once again. By the way, you were
the one who brought up Attorney and client
privileges not me. However, since YOU brought
it up, my question to you was simple. In my
case was the ASUA’s exempt from attorney and
client privileges? I have one more question
that I’ve been trying to ask you for the past
few months. Can you explain to me what are
the elements of count 7 in my indictment which
is a 924(c)(1)(B)(ii)? Thank’s [sic]
Mr. Finci responded on October 27 at 7:06 pm:
Your communications with me and confidential
discussions are privileged communications.
The
citation
you
referenced
to
924(c)(1)(B)(ii),
as
you
already
know,
prohibits possession of a machine gun.
However, the Count in your indictment, as
worded, does not charge you with possession of
a machine gun and your guilty plea was to the
5[-]year mandatory minimum type of firearm
which is a handgun. I understand that this
statutory citation may have been to the wrong
subsection and you should definitely raise the
issue in post conviction if your post
conviction attorney thinks it may help you.
The fact that neither the plea nor the sentence included the
statutory enhancement for a machinegun under § 924(c)(1)(B)(ii),
as the government highlights, is somewhat beside the point.
No. 457, at 13).
(ECF
The question is whether Mr. Finci failed to
investigate an issue or improperly advised Mr. Tatum prior to the
plea and, if so, whether Petitioner was prejudiced by the allegedly
false belief that this specific subsection could be successfully
brought against him as charged.
Mr. Tatum was never informed by the court that count seven
carried a mandatory thirty-year minimum sentence.
23
Nor does the
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 24 of 50
record reflect that Mr. Finci was confused over the definition of
machine gun or the exposure Mr. Tatum faced for count seven.
Most
importantly, the record does not reflect that any misapprehension
Mr. Tatum had was a result of something Mr. Finci told him.
While
Petitioner conclusorily argues that he was misadvised by counsel,
his affidavit and the emails establish that any discussion came
after the entry of the guilty plea, and not before.
Mr. Tatum
does not appear to have asked Mr. Finci until after the plea about
the statutory reference.
Instead, his knowledge about the import
of the statutory reference came from his own research.
What is clear also is that drug quantity was the paramount
issue guiding the plea discussions and resulting sentencing.
Mr.
Tatum acknowledged that he faced a mandatory ten-year minimum for
the drug conspiracy, and that the maximum was life imprisonment.
The view of the parties as to the actual scope of the conspiracy
and
quantity
drastically.
for
which
There
he
simply
surrounding the 924(c) charge.
units
that
trafficking.
also
contained
would
was
be
no
held
issue,
responsible
varied
factual
legal,
or
Two firearms were found in storage
significant
evidence
of
drug
While the statutory reference in count seven applies
to a firearm that is a machinegun, that word never appears in the
indictment and everyone, from the magistrate judge at arraignment,
to counsel during trial preparation, and to the court and counsel
at the rearraignment, treated the charge as referring only to a
24
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 25 of 50
nonspecific firearm with a mandatory minimum of five years.
This
claim will be denied.
E.
The Storage Unit Search
He similarly argues that Mr. Finci failed to file a motion to
suppress the drugs found in the storage-unit, despite the fact
that Mr. Tatum told him it was an illegal search.
at 23).
(ECF No. 425,
He says his former counsel told him he lacked standing
under the Fourth Amendment to challenge that search, as he did not
rent the space.
But Petitioner cites to “Exhibit-C” that contains
a subsequent email from Mr. Finci to the probation office that
does not dispute the unit belonged to Mr. Tatum.
425-5, at 7).
(See ECF No.
He writes, “If not for Johnston’s threats and the
information regarding count-seven carrying a thirty (30) statutory
minimum, at trial Tatum could have shown that, not only was he not
the primary renter of the unit, but video would have shown that
more than three individuals accessed that unit.”
(ECF No. 425, at
23).
It is difficult to understand this contention, inasmuch as
Mr. Finci did file and litigate a motion to suppress concerning
the storage units. (ECF Nos. 13, 50 and 438). The court considered
the arguments made in support of this motion and denied it.
(ECF
No. 87).
Nonetheless,
the
government,
for
its
part,
argues
that
Petitioner cannot show prejudice and, regardless, counsel’s pre25
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 26 of 50
plea tactics should be granted a high level of deference, as is
the case with the previous allegation.
(ECF No. 457, at 9)
(citing, among others, United States v. Mason, 774 F.3d 824, 828
(4th
Cir.
2014)
(Attorneys
“are
permitted
to
set
priorities,
determine trial strategy, and press those claims with the greatest
chances of success.”)).
The effectiveness of Mr. Finci on this
issue need not be addressed, however, as Petitioner never claims
prejudice, nor can it be implied.
Mr. Tatum explicitly states
that the but for cause of his refusal to go to trial was the
alleged threat of an all-white jury and the threat of the sentence
the machinegun charge carried, not the failure to challenge the
search.
Even ignoring that this issue was already raised and
litigated (as the government seems to do), Petitioner does not
claim that a suppression motion would have succeeded (and thereby
obviated his need to plead), as required to show prejudice. (Id.).
This claim will be denied.
F.
Speedy Trial Act and the Threat to Withdraw
Mr. Finci was also ineffective, Petitioner claims, due to his
failure to file “for his speedy trial rights” as “[Mr.] Tatum had
instructed.”
(ECF
No.
425,
at
21)
(citing
United
States
v.
Tinkleberg, 563 U.S. 647 (2011) and Zedner v. United States, 547
U.S. 489 (2006)).
He argues that not only did Mr. Finci ignore
his instructions but told Mr. Tatum that he could “either take the
plea offered or counsel would withdraw.”
26
(Id.).
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 27 of 50
The first part of the claim lacks merit.
At the arraignment
on the Superseding Indictment, counsel did assert the right to a
speedy trial.
correctly
sufficient
violation
(ECF No. 32 (sealed)).
argues
to
that
prove
occurred
a
Mr.
Tatum
Speedy
and
so
Moreover, the government
has
Trial
cannot
failed
Act
argue
ineffective in not raising the issue.
to
(or
that
plead
facts
constitutional)
Mr.
Finci
was
Regardless, he does not
state that this first failure prejudiced him by causing him to
accept the plea.
He does, however, imply that counsel’s threat to
withdraw did induce him to do so and that he would have gone to
trial otherwise.
The government does not address this second
allegation in its opposition at all.
(See generally ECF No. 457).
In Spann v. United States, No. RBD-10-168, 2011 WL 1599235,
at *4 (D.Md. Apr. 27, 2011), Judge Bennett dealt with a similar
allegation in a § 2255 motion that a plea was coerced because the
petitioner’s counsel allegedly threatened to withdraw if a plea
offer was not accepted.
There the allegations were even more
serious, as the petitioner claimed that his counsel went so far as
to threaten to derail any eventual trial if the plea was not taken.
Judge
Bennett,
however,
explained
that
such
claims
after
conviction were foreclosed by the petitioner’s Rule 11 statements
that the petitioner entered the plea voluntarily and was satisfied
with counsel.
Id; see also United States v. Cullen, 943 F.2d 50,
at *2 (Table) (4th Cir. 1991) (finding a district court did not err
27
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 28 of 50
in finding that the petitioner’s representations during his Rule
11 hearing invalidated his § 2255 claim that his lawyer had coerced
him into the plea by, among other things, threatening to withdraw).
Similarly, Mr. Tatum said his plea was in no way coerced and was
entirely voluntarily at his plea hearing.
This claim will be
denied.
G.
Misleading Advice on the Scope of the Conspiracy
Mr. Tatum asserts that counsel failed to challenge what he
believes is an improperly expansive scope of the drug conspiracy
with which he was charged.
Petitioner argues that, “[Mr.] Finci
assured
if
[Mr.]
Tatum
that
he
pleaded
guilty
he
would
be
responsible for conduct that occurred after August 17, 2013, but
before September 6, 2013.
He attaches an email from Mr. Finci
expressing Mr. Tatum’s wish to strike the phrase “from at least
January 2011 until at least August 17, 2012” from the plea.
No. 425, at 44) (citing ECF No. 425-8).
(ECF
He argues that these dates
were nevertheless “front and center” regarding the quantity of
drugs involved in the conspiracy at sentencing.
(Id.).
As a threshold matter, the government argues that Petitioner
fundamentally misunderstands the nature of a conspiracy charge.
It asserts that, “Having admitted to his involvement in the
conspiracy, he cannot now limit the extent of the conspiracy for
which he bears responsibility.”
(ECF No. 457, at 14-15) (citing
United States v. Allen, 716 F.3d 98, 103-4 (4th Cir. 2013)).
28
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 29 of 50
Petitioner, it points out, also acknowledged at his plea hearing
“that the Government’s evidence would show beyond a reasonable
doubt that he conducted financial transactions in furtherance of
the conspiracy dating to early 2011.”
(see ECF No. 450, at 23).
Even more centrally, the government argues, Petitioner cannot
possibly claim prejudice from his lawyer’s advice ultimately to
proceed
with
the
plea,
or
that
objectively reasonable standard.
his
conduct
fell
below
an
The government points out that
the email that Petitioner attaches shows that counsel did exactly
what he was requested he do — seek to strike language suggesting
an expanded scope of involvement in the conspiracy.
Further it
contends that Mr. Finci is not guilty of “turning a deaf-ear to
[Mr.] Tatum,”; the sentencing hearing transcript shows, on the
contrary, that Petitioner’s counsel “argued at length about the
scope of Petitioner’s relevant conduct.”
(referencing ECF No. 231).
(ECF No. 457, at 15-16)
Any suggestion that Mr. Finci’s
performance was deficient or prejudiced Mr. Tatum’s decision to
move forward with the plea is equally baseless.
This claim will
be denied.
H.
A Factual Basis for Plea and Conviction
Petitioner argues that he would not have plead guilty if his
counsel had informed him of the government’s alleged failure to
establish the proper factual basis for his drug conviction.
29
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 30 of 50
First, he contends that the government failed to prove his
knowledge that cocaine even was involved in the conduct to which
he admitted.
He argues that it is “undisputed” that he was not
there when a “truck load” of cocaine was seized, and there is “no
dispute” that there is no evidence that Tatum “knew” the substance
involved was, in fact, cocaine.
(ECF No. 425, at 32).
To support
the notion that knowledge is a predicate to a proper conviction on
a drug offense, Petitioner cites McFadden v. United States, 135
S.Ct. 2298 (2015).
McFadden dealt with a defendant who did not
know that the substance that he was distributing (bath salts) was
regulated as an analog to an “enumerated” controlled substance
pursuant to 21 U.S.C. § 813.
This case is entirely different.
Petitioner is not accused
of possessing drug analogs, but those that are squarely and clearly
prohibited as controlled substances:
heroin and cocaine. For
charges involving controlled substances, the prosecution must
prove that a defendant knew that the substance was some type of
controlled substance, but not that a defendant knew the specific
type of controlled substance.
United States v. Brower, 336 F.3d
274, 276-77 (4th Cir. 2003).
The facts found in the plea agreement and recounted at both
the plea hearing and sentencing show that the government had ample
circumstantial evidence that Mr. Tatum knew the shipments with
which he was involved contained illegal drugs.
30
After all, almost
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 31 of 50
every facet of the conspiracy was carried out clandestinely to
avoid law enforcement — i.e. renting the storage space, in which
drugs and drug proceeds were kept, under an alias and creating
numerous business entities simply to hide the drug proceeds.
No. 95-1, at 3).
(ECF
Equally importantly, the Eleventh Circuit,
affirming a conviction under § 841 and § 846 for conspiracy to
possess and distribute cocaine that was challenged on similar
grounds, explained:
At
the
outset,
we
also
recognize
that § 841(b)
provides
enhanced
maximum
sentences
for
persons
convicted
of
violating §§ 841(a) or 846, depending on the
quantity and type of drug involved. 21 U.S.C.
§ 841(b).
Further, the enhanced statutory
maximum penalties in § 841(b) cannot apply
unless the jury determines the drug type and
quantity
involved
in
the
overall
drug
conspiracy offense.
See United States v.
Sanchez, 269 F.3d 1250, 1270 (11th Cir.2001)
(en banc) . . .
Although the jury must determine the
quantity and type of drug involved, nothing in
the statute, the Constitution, or Apprendi [v.
New Jersey, 530 U.S. 466, 489 (2002)] requires
the government to prove that the defendant
had knowledge of the particular drug type
. . . for which a sentence is enhanced
under § 841(b). Unlike § 841(a), § 841(b)’s
penalty
scheme
imposes
no
mens
rea
requirement. Rather, § 841(b) refers only to
a violation of § 841(a) “involving” certain
quantities and types of controlled substances.
United States v. Sanders, 668 F.3d 1298, 1309 (11th Cir. 2012)
(emphasis added); see also United States v. Collazo, 984 F.3d 1308
(9th Cir. 2021) (“After a defendant is convicted of conspiracy
31
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 32 of 50
under §
846 to
distribute
controlled
substances
in
violation
of § 841(a)(1), the government may establish that the defendant is
subject
to
the
§ 841(b)(1)(B)(i)
penalties
by
proving
in
§
beyond
841(b)(1)(A)(viii)
a
reasonable
doubt
and
that
the § 841(a)(1) offense involved the drug type and quantity set
forth in the two penalty provisions.
The government is not
required to prove that the defendant knew (or had an intent) with
respect to the drug type and quantity set forth in those penalty
provisions in order for them to apply.”).
While these cases involved convictions after a jury trial on
direct appeal, the required proofs involved are equally applicable
to Mr. Tatum’s conviction. The evidence laid out in the plea amply
supports that this conspiracy involved the specified quantities of
heroin
and
“[h]aving
cocaine,
admitted
and
his
as
the
knowing
government
rightly
participation
in
contends,
the
larger
conspiracy, Petitioner was responsible for the amount of drugs
attributed to him.”
Circumstantial evidence, as discussed, shows
that he knew what he was trafficking in was an illegal and
controlled substance of some sort, as part of that conspiracy.
He
cannot now challenge his sentence under §841(b) based on a mens
rea requirement that is not applicable to this provision.
(See
ECF No. 425, at 36).
Second, Petitioner claims that the government failed properly
to prove the drug quantities it attributed to him individually.
32
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 33 of 50
Regardless, to prove either alleged non-constitutional defect with
his plea, Petitioner not only has to show that the government did
not establish a proper basis for the charges, but that this failure
resulted in a “miscarriage of justice” or failed to meet the basic
demands of fair procedure.
Therefore, even if he could show by
preponderance that a factual basis for a conviction on this count
was lacking, Petitioner separately would have to show that his
counsel fell below an objective standard of representation to prove
his attendant ineffective assistance of counsel claim.6
That
question need not be addressed, however, as such a factual basis
for the quantities of heroin and cocaine involved was not lacking.
The
Fourth
Circuit
has
explained
that,
“In
determining
whether a guilty plea has a factual basis, the district court need
not rely only on the Rule 11 plea colloquy; it ‘may conclude that
a factual basis exists from anything that appears on the record.’”
United States v. Mastrapa, 509 F.3d 652, 659-660 (4th Cir. 2007)
(quoting United States v. DeFusco, 949 F.2d 114, 120 (4th Cir.
1991) (the purpose of this requirement is “to ensure that ‘the
court make[s] clear exactly what a defendant admits to, and whether
6
The government treats the claim solely as an ineffective
assistance claim, as the heading frames the claim in this way, but
a good deal of Petitioner’s motion centers around the deficiency
of the plea and sentencing itself, not on counsel’s derivative and
alleged failures.
(See e.g. ECF No. 425, at 35) (“A lack of
factual basis for a plea is a substantial defect calling into
question the validity of the plea.”).
33
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 34 of 50
those
admissions
alleged crime.’”).
are
factually
sufficient
to
constitute
the
When reviewing a conviction of this court on
direct appeal, the Fourth Circuit explained in an unpublished
opinion that this kind of attack on a drug conviction fails when
a petitioner has stated his agreement to factual statements made
during a plea hearing and which “included the drug types and
quantity for which [the petitioner] was held responsible.”
United
States v. Gee, 709 Fed.Appx. 240, 241 (4th Cir. 2018) (per curiam).
The facts presented in Mr. Tatum’s plea hearing, and which he
agreed to in accepting his plea, might alone demonstrate that there
was a sufficient factual basis for Petitioner’s drug conviction.
Insofar as his plea left this an open question at sentencing,
however, the evidence subsequently established a clear and proper
basis for his conviction on drug conspiracy.
At the plea hearing, the facts of the plea were read into the
record.
This included that one kilogram of cocaine had been
recovered at Mr. Tatum’s storage space, in a box addressed to him
(as opposed to his alias), as well as 258 grams of cocaine in three
clear bags and around 195 grams of heroin, all found elsewhere in
the rented space.
His fingerprints were also recovered from a
separate location containing “350 grams of cocaine hydrochloride”
and other drug paraphernalia.
Even though Mr. Finci interjected
and attempted to blur the line between the facts contained in the
plea agreement and those the government would have presented, Mr.
34
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 35 of 50
Tatum was asked directly if he agreed with all the facts read into
the record concerning his own conduct.
He said yes.
He also
agreed that the government would present other facts about what
others had done at trial.
He was also asked “Do you agree that
you are, in fact, guilty of the drug conspiracy specifically in
Count
One,
which
is
to
distribute,
possess
with
intent
to
distribute five kilograms or more of cocaine and 100 grams or more
of heroin?”
At
He said yes. (ECF No. 450, at 20-25).
sentencing,
as
the
government
rightly
asserts,
Petitioner’s counsel did not refute his admitted involvement in
the conspiracy but rather challenged whether the government had
proven the drug amounts involved.
Argument from both sides was
heard on the matter, but ultimately it was found that the evidence
established a clear lower bound for the drug amounts that could be
directly attributed to Petitioner.
hearing,
Mr.
Tatum
had
clearly
Within the plea and the plea
and
expressly
agreed
to
participation in the conspiracy to distribute these drugs.
A
single shipment interdicted from Mr. Ford-Bey’s source, it was
pointed out, contained thirteen boxes with an average of just under
ten kilograms of cocaine each.
There was evidence, moreover, that
such shipments took place on a monthly basis.
Assuming Petitioner
was not the only recipient of the substances sent from this source,
a conservative estimate easily would still reach the threshold of
controlled substances required to support the asserted guideline
35
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 36 of 50
range.
In particular, it was reasoned that even “If, over 32
months, the defendant averaged just under five kilograms a month,
we’d easily reach the 150[-]kilo threshold for a level 36 [offense
level].
There is no way the evidence points lower than that.
Absolutely no way.”
(ECF No. 231, at 44).
Petitioner’s claims —
that the necessary factual basis for his conviction and sentencing
was not established and that his counsel was deficient in his
failure to inform him of this alleged fact — are without merit and
will be denied.
I.
The Plea’s Forfeiture Provisions
Mr. Tatum claims that Mr. Finci did not properly inform him
that he was not required to forfeit the seized items as agreed to
in the plea or that he could have petitioned to “reacquire his
illegally
taken
items.”
Although
Petitioner
makes
stray
references to his earlier constitutional arguments when referring
to
the
“unconstitutional
plea,”
this
claim
is
entirely
an
ineffective assistance of counsel claim as its central question is
“Was Tatum denied the promise of effective assistance of counsel”
because of this alleged failure properly to inform Petitioner of
his rights regarding asset forfeiture.
7
(ECF No. 425, at 48).7
The claim does purport to raise a non-constitutional defect;
Petitioner cites to States v. Chamberlin, 868 F.3d 290 (4th Cir.
Aug. 18, 2017), as prohibiting “the pretrial restraint of a
defendant’s innocent property under the Federal Forfeiture statute
21 U.S.C. § 853.” (ECF No. 425, at 47-48). But the government
36
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 37 of 50
To state a viable ineffective assistance claim, Petitioner
must first show prejudice before his counsel’s performance is
questioned.
He fails to make such a showing.
The government rightly points out that Petitioner could not
have been prejudiced by the loss of the majority of these items,
as a threshold matter.
It was explained that, by pleading guilty,
he was agreeing to these provisions and that the plea provided
that the court would issue an order of forfeiture over “assets
directly traceable to the offense.”
Petitioner was walked through
every seized bank account, along with some of the major items of
value seized, and their estimated value.
While not every single
item was listed, Mr. Tatum was asked, “[s]o you’ve reviewed this
list carefully here?” and he said yes.
Petitioner’s counsel
further represented that he and Mr. Tatum had reviewed the list
and,
as
the
government
highlights,
had
found
that
“a
good
percentage” of these items did not belong to Petitioner. (ECF No.
450, at 36).
Petitioner has no interest in those items, by his
own admission, and so an alleged failure to retrieve them cannot
have prejudiced his decision to plead guilty.
rightly argues that Chamberlain is entirely inapposite. (ECF No.
457, at 16-17). The case involved pretrial restraint of substitute
property, and here the government has shown that the property in
question is not “untainted” property, but the proceeds of his drug
conspiracy, as discussed more below. See Chamberlain, 868 F.3d
290, 294 (4th Cir. 2017).
37
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 38 of 50
While it is therefore unclear as to which items Mr. Tatum is
even asserting a right of possession, this has little bearing on
the ultimate outcome of his petition as he cannot possibly show
prejudice in having to forfeit his purported right in any of these
items.
Prejudice in the context of an ineffective assistance
claim, as discussed, means Petitioner would not have entered the
plea but for the alleged error of counsel.
For Mr. Tatum to
conjecture that he would not have signed the plea and instead would
have gone to trial simply because the plea contained forfeiture
provisions that barred his attempts to retrieve these items defies
common-sense; the weight of the evidence against him and the
numerous, additional charges that would have been pursued had he
gone to trial assuredly carried far more weight (if not all the
weight) in Petitioner’s decision-making during plea negotiations,
as he himself highlights in his petition.
Ultimately, Petitioner has no possession rights in any of
these items (not just those he concedes are not his) on which to
base a claim of prejudice.
The government is right that the
stipulated facts, agreed to by both parties as part of the plea,
show by a clear preponderance that the forfeited assets were all
proceeds of the conspiracy.
(ECF No. 457, at 17) (citing United
States v. Tanner, 61 F.3d 231, 235 (4th Cir. 1995)).
A person has
no right of possession in the seized “proceeds of illegal drug
sales.”
United States v. Sum of $185,336.07 U.S. Currency Seized
38
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 39 of 50
from Citizens’ Bank Acct. L7N01967, 731 F.3d 189, 194 (2nd Cir.
2013) (citing items subject to forfeiture under 21 U.S.C. § 881).
This claim will be denied.
J.
“Unknowingly, Unintelligent and Involuntary” Plea
As a penultimate and catch-all claim, Petitioner argues that
Mr.
Finci’s
alleged
failure
to
pursue
the
various
theories,
detailed above, “renders” his plea “unknowingly, unintelligent,
and involuntary” and thus void.
(ECF No. 425, at 50).
It is not
clear what new and independent claim, if any, this allegation
makes, but Mr. Tatum seems to blame his decision to move forward
with a plea on all of Mr. Finci’s various, alleged oversights and
shortcomings
He argues that, had Mr. Finci not counseled him to
accept the plea based on faulty assumptions, he would gone to
trial.
Regardless, the government correctly asserts that, “The
record of [the] Rule 11 hearing reflects that his guilty plea was
voluntary and intelligent.”
(ECF No. 457, at 8).
Insofar as it
re-raises the improper threat to invalidate this plea process, it
is duplicitous.
K.
This claim is without merit and will be denied.
Reasserted Supplemental Claims
As a final section to his main petition, Mr. Tatum attaches
a copy of the pro se supplemental brief he filed in his first
direct appeal.
He first argues that had Mr. Finci raised these
issues to the Fourth Circuit on his behalf, the court “would have
vacated the plea and or the sentence.”
39
His former counsel thereby
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 40 of 50
“failed in his duty to prosecute his first appeal.”
He does not
seek to reassert these claims directly, however, but asks “the
Court
to
review
these
claims
and
with
the
arguments
herein
determine whether [Mr.] Finci failed in his duty to prosecute.”
(ECF No. 425, at 52).
The standard for analyzing ineffective
representation on appeal differs somewhat from the standard during
trial:
In order to establish a claim that
appellate counsel was ineffective for failing
to pursue a claim on direct appeal, the
applicant must normally demonstrate (1) that
his “counsel’s representation fell below an
objective standard of reasonableness” in light
of
the
prevailing
professional
norms,
Strickland, 466 U.S. at 688, 104 S.Ct. 2052,
and
(2)
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.
See Smith v. Robbins,
528 U.S. 259, 120 S.Ct. 746, 764, 145 L.Ed.2d
756 (2000) (holding that habeas applicant must
demonstrate that “counsel was objectively
unreasonable” in failing to file a merits
brief addressing a nonfrivolous issue and that
there is “a reasonable probability that, but
for his counsel’s unreasonable failure ..., he
would have prevailed on his appeal”).
In applying this test to claims of
ineffective assistance of counsel on appeal,
however,
reviewing
courts
must
accord
appellate counsel the “presumption that he
decided which issues were most likely to
afford relief on appeal.” Pruett v. Thompson,
996 F.2d 1560, 1568 (4th Cir.1993). Counsel
is not obligated to assert all nonfrivolous
issues on appeal, as “[t]here can hardly be
any question about the importance of having
the appellate advocate examine the record with
40
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 41 of 50
a view to selecting the most promising issues
for review.” Jones v. Barnes, 463 U.S. 745,
752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983);
see also Smith v. South Carolina, 882 F.2d
895, 899 (4th Cir.1989). Indeed, “‘[w]innowing
out weaker arguments on appeal and focusing
on’ those more likely to prevail, far from
being evidence of incompetence, is the
hallmark of effective appellate advocacy.”
Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct.
2661, 91 L.Ed.2d 434 (1986) (quoting Jones,
463 U.S. at 751, 103 S.Ct. 3308); see also
Smith, 882 F.2d at 899 (counsel’s failure to
raise
a
weak
constitutional
claim
may
constitute an acceptable strategic decision
designed “to avoid diverting the appellate
court’s attention from what [counsel] felt
were stronger claims”). Although recognizing
that “[n]otwithstanding Barnes, it is still
possible to bring a Strickland claim based on
counsel’s failure to raise a particular claim”
on direct appeal, the Supreme Court has
recently reiterated that “it [will be]
difficult to demonstrate that counsel was
incompetent.”
Robbins, 120 S.Ct. at 765.
“‘Generally, only when ignored issues are
clearly stronger than those presented, will
the presumption of effective assistance of
counsel be overcome.’” Id. (quoting Gray v.
Greer, 800 F.2d 644, 646 (7th Cir.1986)).
Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000).
Petitioner has not shown that any decision concerning which
issues to raise on appeal constituted ineffective representation.
None of the issues is meritorious or weighty enough to overcome
the decision to raise the ones pursued.
While Petitioner asks for
these arguments to be incorporated into his overall petition only
as they relate to an ineffective assistance of counsel claim, this
question cannot be addressed without assessing the merits of these
41
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 42 of 50
arguments; as discussed, the Fourth Circuit never got this far in
dismissing them on procedural grounds, and so Petitioner is not
barred from raising them here.
The government does not address this attempt to revive these
claims en masse.
These claims are almost entirely duplicitous to
those discussed above, arguing, among other things:
1) an alleged
error by the district court in accepting his guilty plea, 2) a
lack of notice to Mr. Tatum of the quantity of drugs foreseeable
from this plea, 3) a failure of the district court properly to
determine the drug amounts involved in sentencing, and 4) a
convoluted argument and somewhat unintelligible theory as to why
the Doctrine of Constitutional Avoidance requires a mens rea of
“knowingly” or “intentionally” to be applied to the penalties
available for drug crimes under 21 U.S.C § 841. In an introductory
section entitled, “Pertinent Facts Relevant to the Supplemental
Issues,” this pro se motion recounted the prosecutor’s alleged
threat regarding potential jury composition, as alluded to above,
and explained that such threats had “devastating consequence[s]”
on him.
(ECF No. 425-9, at 1-10 and 15-21).
These allegations
are directly addressed by the discussion above and are otherwise
without merit; they are therefore similarly incapable of forming
the basis of an ineffective assistance claim and will be denied.
The only novel theory contained in this attachment and raised,
untested, before the Fourth Circuit is that Mr. Tatum’s 32[4]42
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 43 of 50
month-long
federal
prison
sentence
is
an
“excessive
unconstitutional” punishment under the Eighth Amendment.
11-15).
and
(Id., at
He argues that this sentence is “many times longer” than
any sentence he could have received in state court and thus
violates
the
punishments.”
amendment’s
“prohibition
of
cruel
and
unusual
But in affirming a mandatory minimum sentence of
120 months for a written plea agreement to only one count of
possession with intent to distribute and with only five grams of
cocaine base involved under 21 U.S.C. § 841(a)(1), the Fourth
Circuit found, in an unpublished opinion, that the sentence was
presumed reasonable as it fell “within the applicable guidelines
range.”
United States v. Philips, 411 Fed.Appx. 591, at *1 (4th
Cir. 2011) (citing United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007)).
The plea, in turn, calculates that Petitioner’s guilty plea
established facts that support a base offense level of 38 should
he go to trial,8 in viewing count one as an adjustment to count
eight (and viewing the counts together as a “group”). In addition,
8
The plea agreement also notes, however, that should
Petitioner proceed to trial, the parties stipulate to an additional
2-level enhancement under 18 U.S.C. § 1956(h).
The government
also expresses its intention therein to seek another 2-level
enhancement based on Mr. Tatum’s alleged obstruction of justice
during his investigation and prosecution and to retain the option
to challenge any 2-level reduction sought for the Defendant’s
apparent and prompt recognition and affirmative acceptance of
personal responsibility. (ECF No. 95, ¶ 6(c),(e),(f)).
43
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 44 of 50
count seven, the plea explained, stood to impose a statutory
mandatory minimum of five years, applied “consecutive to the
sentence imposed by Counts One and Eight.”
(d),(g)).
(ECF No. 95, ¶ 6
An offense level of 38 and a Criminal History Category
I produces a guideline range of 235 to 293 months on Counts One
and Eight alone, plus a five-year mandatory minimum (60 months)
for count seven, as pointed out at sentencing.
(ECF No. 231, at
77).
fell
This
means
that
Mr.
Tatum’s
sentence
within
projected guideline range stipulated to by the parties.
Petitioner
ultimately
received
less
than
imprisonment agreed to in the plea agreement.
the
360
the
Moreover,
months’
(ECF No. 95, ¶ 9).
His sentence is presumptively reasonable, and Petitioner has not
carried his burden to rebut this presumption.
He therefore cannot
predicate a claim against his attorney on the excessiveness of his
sentence under the Eighth Amendment.
His attempt to supplement
his main petition with this argument, as with the others, will be
denied.
III. Motion to Supplement the Motion to Vacate, Set Aside or
Correct Sentence
A few months ago, Mr. Tatum filed a motion for leave to file
a supplement to his § 2255 motion, which lodged a new claim that
his plea was invalid under Rehaif v. United States, 139 S.Ct. 2191
(2019) and United States v. Gary, 954 F.3d 194 (4th Cir. 2020).
44
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 45 of 50
(ECF No. 538).
It is unclear whether this motion is timely, but,
regardless, it will be denied on the merits.
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.
(emphasis added).
An otherwise untimely amendment to a timely
claim is considered timely when it “relates back” because it arises
out of the “conduct, transaction, or occurrence set forth . . .
set forth in the original pleading.”
Mayle v. Felix, 545 U.S.
664, 649 (2005) (citing Fed.R.Civ.P. 15(c)(2)).
Rehaif involved a conviction, after trial, under 18 U.S.C.
§ 922(g) and § 924(a)(2).
§ 922(g) makes it illegal for certain
persons to possess firearms, and § 924(a)(2) provides that anyone
45
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 46 of 50
who “knowingly” violates the former provision can be sentenced to
up to ten years in prison.
The Court found the government must
prove that a defendant knew both that he possessed a gun and that
he was part of the relevant category.
Rehaif, 139 S.Ct., at 2194.
This ruling is entirely inapplicable to Mr. Tatum’s conviction
under § 924(c), however.
Regardless, any claim that Mr. Tatum did
not knowingly possess a firearm while knowingly engaging in a drug
conspiracy is belied by his plea agreement and Rule 11 hearing
that affirmed his admission of guilt to count one and seven of the
Superseding Indictment.
(ECF No. 24).
Alternatively, in Gary, a petitioner cited to Rehaif and
successfully argued on direct appeal that his plea to §922(g) was
not knowingly and intelligently entered, as he did not understand
one of the elements of his crime, namely that “he knew he had the
relevant status when he possessed [the firearm].”
at 198 (quoting Rehaif, 139 S.Ct. at 2194).
Gary, 954 F.3d
Even assuming that
Gary cast a new light on Rehaif, which was more than a year old at
the time Petitioner’s filing, whether the latter announced a
retroactive rule is not clear.
As Gary was decided on direct
appeal, it did not address the retroactivity of Rehaif at all.
Only a couple of circuits, addressing the issue in the context of
successive or second § 2255 motions — where an initial petition
has already been ruled on — have implied it is not retroactive for
any type of collateral challenge.
46
See e.g. Mata v. United States,
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 47 of 50
969 F.3d 91, 93 (2nd Cir. 2020) (“The Supreme Court’s Rehaif
decision resolved only a question of statutory interpretation and
did not announce a rule of constitutional law (much less a new
one,
or
one
that
the
Supreme
Court
has
made
retroactive
on
collateral review or that was previously unavailable)”).9
As the Fourth Circuit has not squarely addressed the issue
and as the petition fails on the merits, a pronouncement on this
far-reaching issue can be avoided.
same reason as Rehaif:
subsection
of
the
gun
Gary is inapposite for the
it deals with an entirely different
statute.
The
request
to
supplement
Petitioner’s original motion with this claim will be granted, but
the claim itself will be denied.
IV.
Second Motion to Supplement10
,
9
The other circuits that have grappled with the retroactivity
of Rehaif have similarly done so only in the context of second or
successive § 2255 motions that must, as per § 2255(h), cite a new
constitutional rule to be timely. As such, the majority of these
do not fully answer the question of the case’s retroactivity
because the case does not announce a constitutional rule at all,
but a statutory one. See Tate v. United States, 982 F.3d 1226,
1228 (9th Cir. 2020); In re Sampson, 954 F.3d 159, 161 (3d Cir.
2020); Khamisi-El v. United States, 800 Fed.Appx. 344, 349 (6th
Cir. 2020); but see In re Palacios, 931 F.3d 1314 (11th Cir. 2019)
(“[E]ven if Rehaif had announced a new rule of constitutional law
. . . it was not made retroactive to cases on collateral review by
the Supreme Court.”).
47
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 48 of 50
10
This section of this opinion will be filed under seal as
it recounts other portions of the record that are under seal but
that are not ultimately pertinent to Petitioner’s plea or sentence.
As such it will be denied, and a redacted version of this
Memorandum Opinion will be filed on the public docket, while the
full version will remain under seal.
48
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 49 of 50
V.
Conclusion
For the foregoing reasons, Petitioner’s motion to vacate, set
aside, or correct his sentence, as well the claims raised in his
requests to file supplemental motions to vacate/correct, will be
denied.
A separate order will follow.
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
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
49
Case 8:18-cv-00002-DKC Document 2 Filed 03/02/21 Page 50 of 50
district court was correct in its procedural ruling.”
Rose v.
Lee, 252 F.3d 676, 684 (4th Cir. 2001) (internal marks omitted).
Petitioner
does
not
satisfy
the
above
standards.
Accordingly, a certificate of appealability will not issue.
separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
50
A
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