Marshall v. USA - 2255
Filing
2
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 4/27/2020. (c/m 4/27/2020 heps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MICHELLE RENEE MARSHALL
:
v.
:
Civil Action No. DKC 18-1462
Criminal Case No. DKC 16-404
:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution is a motion to
vacate sentence pursuant to 28 U.S.C. § 2255 filed by Michelle
Renee Marshall. (ECF No. 61).1 The Government filed an opposition,
(ECF No. 66), Ms. Marshall replied (ECF No. 71), and filed a
supplement (ECF No. 72).
For the following reasons, the motion
will be denied.
I.
Background
Ms. Marshall was charged in a four-count indictment with two
counts of wire fraud and two counts of aggravated identity theft.
(ECF No. 1).
On January 11, 2017, she pleaded guilty pursuant to
a plea agreement to counts one (wire fraud) and four (aggravated
identity theft).
(ECF No. 33).
Sentencing took place on June 26,
2017, and she was permitted to self-surrender on September 25,
1
Also pending is a motion to amend payment schedule while
incarcerated.
(ECF No. 59).
That motion is moot, because Ms.
Marshall has been released. In addition, the motion to appoint
counsel will be denied. (ECF No. 73).
2017.
(ECF Nos. 54; 58).
on May 21, 2018.
II.
She filed the pending motion to vacate
(ECF No. 61).
Standard of Review
To be eligible for relief under § 2255, Petitioner must show,
by a preponderance of the evidence, that her “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[.]”
is
28 U.S.C. § 2255(a).
entitled
to
consideration.
Cir. 1978).
have
her
A pro se movant, such as Petitioner,
arguments
reviewed
with
appropriate
See Gordon v. Leeke, 574 F.2d 1147, 1151–53 (4th
But if the § 2255 motion, along with the files and
records of the case, conclusively show that she is not entitled to
relief, a hearing on the motion is unnecessary and the claims
raised in the motion may be dismissed summarily.
§ 2255(b).
III. Analysis
All of Ms. Marshall’s claims arise from her alleged discovery,
upon
entering
prison,
that
BOP
policy
permitted
transgender
“biological male inmates, many still with their genitals, to be
housed in locked and unlocked prison cells with biological female
inmates.”
(ECF No. 61, at 8).
She claims particular sensitivity
due to prior events and, asserts that, had she known of the policy,
she would not have entered a guilty plea, but would have gone to
2
trial.
(Id., at 9).
She also asserts that the policy violates
her rights under the United States Constitution.
A.
(Id., at 9-15).
Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, Petitioner
must show both that her attorney’s performance fell below an
objective standard of reasonableness and that she suffered actual
prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
There is a strong presumption that counsel’s conduct falls within
a wide range of reasonably professional conduct, and courts must
be
highly
deferential
in
scrutinizing
counsel’s
performance.
Strickland, 466 U.S. at 688–89; Bunch v. Thompson, 949 F.2d 1354,
1363 (4th Cir. 1991).
Courts must judge the reasonableness of
attorney conduct “as of the time their actions occurred, not the
conduct’s consequences after the fact.”
Frye v. Lee, 235 F.3d
897, 906 (4th Cir. 2000). Furthermore, a determination need not be
made concerning the attorney’s performance if it is clear that no
prejudice could have resulted from some performance deficiency.
Strickland, 466 U.S. at 697.
To demonstrate actual prejudice,
Petitioner “must show that there is a reasonable probability that,
but
for
counsel’s
unprofessional
errors,
proceeding would have been different.”
the
result
of
the
Id. at 694.
Ms. Marshall argues that counsel’s failure to advise her of
collateral, or direct, consequences of her guilty plea, i.e., the
potential presence of transgender inmates in close proximity, and
3
failure to move for a downward departure or renegotiate the plea
upon learning of the policy, violated her right to the effective
assistance of counsel.
It is not at all clear what “policy” is at issue, or when it
went into effect.
She claims to have learned, upon entering the
prison in West Virginia, that the BOP had “changed the well-known
policy of sex segregated jails and prisons.”
(ECF No. 61, at 8).
The Government’s response states that the BOP Transgender Offender
Manual was modified on May 11, 2018, and it instructs prison
officials how to designate transgender or intersex inmates.
No. 66, at 4 n.1).
(ECF
Ms. Marshall did not contest the assertion in
her reply. If that is the change in policy about which Ms. Marshall
complains, it could not have been ineffective representation for
her attorney not to have advised her about it.
It happened months
after the plea and sentencing.
In any event, there is no authority requiring counsel to
explain, or perhaps even be aware of, every detail of prison life
to which a defendant who is contemplating entering a guilty plea
resulting in imprisonment will be exposed.
In Padilla v. Kentucky,
559 U.S. 356, 366-67 (2010), the Supreme Court of the United States
reiterated that, under Strickland, the question is whether the
attorney
performed
reasonably
“under
prevailing
professional
norms[,]” as reflected in American Bar Association standards and
other guides.
These are “valuable measures of the prevailing
4
professional norms of effective representation[.]”
Padilla, 559
U.S. at 367.
There does not appear to be anything in the ABA standards
that specifies knowledge and advice about prison conditions, which
arguably might be a direct consequence of conviction.
There is
general guidance on collateral consequences:
(a) Defense counsel should identify, and advise the
client of, collateral consequences that may arise from
charge, plea or conviction. Counsel should investigate
consequences under applicable federal, state, and local
laws, and seek assistance from others with greater
knowledge in specialized areas in order to be adequately
informed as to the existence and details of relevant
collateral consequences. Such advice should be provided
sufficiently in advance that it may be fairly considered
in a decision to pursue trial, plea, or other
dispositions.
(b) When defense counsel knows that a consequence is
particularly important to the client, counsel should
advise the client as to whether there are procedures for
avoiding, mitigating or later removing the consequence,
and if so, how to best pursue or prepare for them.
(c) Defense counsel should include consideration of
potential collateral consequences in negotiations with
the prosecutor regarding possible dispositions, and in
communications with the judge or court personnel
regarding the appropriate sentence or conditions, if
any, to be imposed.
Standard
4-5.4
Consideration
of
Standards for Criminal Justice.
Collateral
Consequences,
ABA
A law review article, published
shortly after Padilla, noted that the type of advice required in
the context of a guilty plea is to assist in the decision whether
to plead guilty or go to trial.
McGregor Smyth, From “Collateral”
5
to “Integral”: The Seismic Evolution of Padilla v. Kentucky and Its
Impact on Penalties Beyond Deportation, 54 How.L.J. 795 (2011).
Concrete circumstances, such as loss of housing, or requirement to
register
as
a
sex
offender,
are
the
focus
of
counsel’s
responsibilities. If the nature of the offense to which a defendant
pleads guilty, or the length of a sentence, affects the relevant
collateral consequence, then counsel is expected to explore the
alternatives.
Here, however, because Ms. Marshall would face the
same conditions of confinement regardless of whether she pleaded
guilty or was convicted after a trial, there is no authority, by
guideline
or
otherwise,
requiring
counsel
to
advise
on
BOP
policies.
Moreover, Ms. Marshall had served time in prison before,
and accordingly, could be expected to know, more than a first
offender, what imprisonment entailed.
Thus, Ms. Marshall has failed to demonstrate that counsel’s
performance
fell
below
an
acceptable
degree
of
professional
conduct.
B.
Plea was not knowing and intelligently given
In her list of issues, but not in the argument section, Ms.
Marshall also asserts that her guilty plea was not voluntary and
intelligent.
Thus, it is not clear that she has raised it as a
stand-alone issue, or as a component of her ineffective assistance
of counsel claim.
A guilty plea, to be valid, must be voluntary
and waivers of rights must be knowingly and intelligently made,
6
with sufficient awareness of relevant circumstances and likely
consequences.
United States v. Ruiz, 536 U.S. 622, 629 (2002)
(citing Brady v. United States, 397 U.S. 742, 748 (1970) and Boykin
v. Alabama, 395 U.S. 238, 242 (1969)).
In Ruiz, the Court
observed:
[T]his Court has found that the Constitution, in respect
to a defendant’s awareness of relevant circumstances,
does not require complete knowledge of the relevant
circumstances, but permits a court to accept a guilty
plea,
with
its
accompanying
waiver
of
various
constitutional
rights,
despite
various
forms
of
misapprehension under which a defendant might labor.
Id. at 630.
Ms. Marshall obviously knew that incarceration in a
federal prison facility was a consequence of her guilty plea.
There is no requirement that she be aware of all facets of
imprisonment in order to enter a proper guilty plea.
C.
Constitutional Challenges
As pointed out by the Government, challenges to conditions
of confinement are not cognizable in this type of habeas action.
Any complaints of that nature would have to be presented in the
district of confinement and against a proper defendant.
Thus,
allegations of cruel and unusual punishment or violation of the
First Amendment will not be further discussed.
Ms. Marshall’s ex
post facto argument asserts that the change in BOP policy increased
her punishment after the commission of her crime.
summarized:
7
As recently
The Constitution forbids Congress or the states from
passing any ex post facto law. See U.S. Const. art. I,
§ 9, cl. 3; id. § 10, cl. 1. An ex post facto law is
one that “imposes a punishment for an act which was not
punishable at the time it was committed; or imposes
additional punishment to that then prescribed.” Weaver
v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17
(1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.)
277, 325–326, 18 L.Ed. 356 (1866)), limited on other
grounds by Cal. Dep’t of Corr. v. Morales, 514 U.S. 499,
506 n.3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). The
Constitution’s prohibition on ex post facto laws
“ensures that individuals have fair warning of
applicable
laws
and
guards
against
vindictive
legislative action.” Peugh v. United States, 569 U.S.
530, 544, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) (citing
Weaver, 450 U.S. at 28–29, 101 S.Ct. 960).
United States v. Wass, 954 F.3d 184, 189 (4th Cir. 2020).
But, in
order to apply, the disputed provision must constitute punishment,
and not simply be part of a regulatory scheme.
It is far from
established that the policy at issue here can be characterized as
punishment.
Instead, it is part of the BOP’s regulatory machinery
for managing inmates.
overturn
her
Moreover, again, any remedy would not be to
sentence,
but
to
eliminate
the
additional
“punishment,” something beyond the authority of this court to
effectuate in this instance.
IV.
Conclusion
For the foregoing reasons, the motion to vacate will be
denied.
Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. § 2255, this court is required to issue or deny a
certificate of appealability when it enters a final order adverse
to the applicant
8
A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.”
U.S.C. § 2253(c)(2).
28
When the district court denies relief on the
merits, a prisoner satisfies this standard by demonstrating that
reasonable jurists could find the district court’s assessment of
the constitutional claims debatable or wrong.
See Buck v. Davis,
––– U.S. ––––, 137 S. Ct. 759, 773–74 (2017).
When the district
court denies relief on procedural grounds, the prisoner must
demonstrate
both
that
the
dispositive
procedural
ruling
is
debatable and that the motion states a debatable claim of the
denial of a constitutional right.
Gonzalez v. Thaler, 565 U.S.
134, 140–41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484
(2000)).
Ms. Marshall has not made the necessary showing and a
certificate of appealability will not issue.
A separate order
will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
9
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