Wright v. USA-2255
Filing
2
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 1/15/2019. (c/m 1/15/2019 heps, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
NIKKO TA YLOR WRIGHT,
Petitioner,
Civil Action No. TDC-18-1659
Crim. Action No. TDC-16-0260
v.
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION
Nikko Taylor Wright has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant
to 28 U.S.C.
S 2255.
In his Motion, Wright challenges his conviction and sentence in the
underlying criminal action on the basis that his trial counsel acted in a constitutionally deficient
manner. Having reviewed the submitted materials, the Court finds that no hearing is necessary.
See Rule 8(a), Rules Governing Section 2255 Proceedings for the United States District Courts;
D. Md. Local R. 105.6. For the reasons set forth below, the Motion is DENIED.
BACKGROUND
On May 25, 2016, a federal grand jury returned a one-count Indictment charging Nikko
Wright ("Wright") and ten others with Conspiracy to Distribute and Possess with Intent to
Distribute Controlled Substances 500 g or more of Cocaine and a Detectable Amount of Heroin,
in violation of 21 U.S.C. SS 846 and 841(b)(l)(B).
The Indictment issued after a two-year
investigation in multiple states.
According to a factual statement agreed to by Wright, between March 2014 and May 2016,
Wright was a member of a drug trafficking organization ("DTO"), led by his brother and co-
defendant Mario Wright, that formed the basis of the conspiracy charge. The DTO was based in
Newark, New Jersey, but it reached into other states, including Connecticut and Maryland. Wright
was the head of the Maryland arm of the DTO, which received heroin and cocaine from Mario
Wright in New Jersey in amounts meant for distribution. Wright orchestrated the transfer of drugs
from New Jersey to Maryland either by driving to New Jersey and picking up drugs, delegating
that duty to his Maryland associates, or meeting Mario Wright's associates in Maryland or at a
highway rest area in Delaware to conduct the handoff. Wright oversaw the distribution of cocaine
and heroin obtained from Mario Wright to drug dealers and users in Maryland.
Wright at times possessed firearms and ammunition as part of his role in the DTO.
Specifically, Shahryar Talebi-Nejad, another member of the DTO, stored at his home a Rossi .38
caliber revolver, six CBC .38 caliber cartridges, and two Winchester .38 caliber cartridges for
Wright. On March 16,2016, Wright asked Talebi-Nejad to bring the revolver and cartridges to
him. Wright put the firearm and ammunition in the trunk of a car in which he was riding, next to
cocaine meant for sale, during a trip to threaten a drug customer who had recently attacked
Wright's sister and insulted Wright. That night, Wright was seriously injured when he and his
driver, Daniel Rocco Famulare, led the police on a high-speed chase and crashed the car into a
tree.
Following the return of the Indictment, attorney William A. Mitchell, Jr. was appointed as
Wright's counsel. On February 24, 2017, Wright entered into a plea agreement in which he agreed
to plead guilty to the Indictment.
Criminal Procedure II(c)(I)(C),
The plea agreement was entered pursuant to Federal Rule of
under which Wright would be permitted to withdraw his guilty
plea if the Court did not agree to sentence him within the parties' agreed-upon sentencing range of
78 to 96 months of imprisonment
"regardless of the applicable [United States Sentencing
2
Guidelines] calculations."
Plea Agreement ,-r 9, ECF No. 316; see Fed. R. Crim. P. II(c)(l)(C).
The parties agreed that the total offense level under the United States Sentencing Guidelines
("Guidelines")
was 29, including a two-level enhancement to the base offense level because
Wright had possessed a dangerous weapon, pursuant to U.S.S.G. ~ 2Dl.l(b)(I).
In the plea
agreement, Wright admitted that he knowingly possessed the Rossi revolver in furtherance of the
drug trafficking conspiracy.
In signing the agreement, Wright attested that he had "read this
agreement" and "carefully reviewed every part of it with my attorney." Plea Agreement 8. His
attorney confirmed that he had reviewed the plea agreement with Wright. Wright further affirmed
that he voluntarily agreed to the plea agreement, had reviewed the Factual and Advisory Guidelines
Stipulation with his attorney and did "not wish to change any part of it," and was "completely
satisfied with the representation of my attorney." Id.
On February 24, 2017, Wright pleaded guilty to the drug conspiracy charge.
At the
sentencing hearing on June 26, 2017, the Court found that the total offense level was 30, including
the agreed-upon two-level enhancement for a dangerous weapon and a three-level increase for
Wright's role in the conspiracy as a manager under U.S.S.G. ~ 3Bl.l(b),
and that the Guidelines
range was 108-135 months, but sentenced Wright to 90 months of imprisonment, within the
parties' agreed-upon range. At the hearing, Wright's counsel conceded that the possession of the
gun "was sufficient under the guidelines and under the case law to prove at least a two-level
enhancement" due to the proximity of the gun to the drug business, but argued to the Court that
the possession was not "in furtherance of in the actual sense" because Wright was reacting in anger
to the assault of his sister. Sentencing Hr'g Tr. 18, ECF No. 521-2. Wright did not file a direct
appeal of his conviction and sentence. On June 5, 2018, he filed the pending Motion.
3
DISCUSSION
In his Motion, Wright collaterally attacks his conviction based on his claim of ineffective
assistance of counsel. Specifically, he asserts that his attorney's performance was constitutionally
inadequate by failing to contest the two-level sentencing enhancement for possessing a dangerous
weapon pursuant to U.S.S.G.
S 2D1.1 (b)(1),
to investigate mitigating circumstances surrounding
his possession of that weapon, and to present evidence of those mitigating circumstances to the
Court. He appears to complain about the application of this particular enhancement because it has
made him ineligible for a reduction in his sentence of up to one year based on successful
completion of the Bureau of Prisons' Residential Drug Abuse Program ("RDAP"). See 18 U.S.C.
S 3621 (e)(2)(B)
(2012). Offenders who have been convicted of an offense involving the possession
ofa firearm are not eligible for early release through RDAP. 28 C.F.R.
I.
S 550.55(b)(5)(ii)
(2018).
Legal Standards
A.
Section 2255 Motions
A prisoner in federal custody may move to vacate, set aside, or correct his sentence on the
basis that: (1) "the sentence was imposed in violation of the Constitution or laws of the United
States"; (2) the sentencing court lacked jurisdiction; (3) the sentence exceeded the maximum
authorized by law; or (4) the sentence is "otherwise subject to collateral attack."
S 2255(a)
(2012).
The petitioner bears the burden of proof and must establish the claim by a
preponderance ofthe'evidence.
S 2255
28 U.S.C.
See Miller v, United States, 261 F.2d 546,547 (4th Cir. 1958). In
proceedings, "(u]nless the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief, the court shall ...
grant a prompt hearing thereon,
determine the issues and make findings of fact and conclusions of law with respect thereto." 28
U.S.C.
S 2255(b).
A hearing is necessary where there are disputed issues of fact that need to be
4
resolved in order for the court to rule on the motion. See United States v. Witherspoon,
231 F.3d
923, 927 (4th Cir. 2000). "If it plainly appears from the motion, any attached exhibits, and the
record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss
the motion." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District
Courts.
Moreover, absent extraordinary
evidentiary hearing, dismiss any
circumstances,
S 2255 motion
a court may, "without holding an
that necessarily relies on allegations that contradict
the sworn statements" made during a Rule 11 guilty plea colloquy, because such allegations are
'''palpably incredible' and 'patently frivolous or false.'" United States v. Lemaster, 403 F.3d 216,
221-22 (4th Cir. 2005).
Because, as discussed below, Wright has not asserted extraordinary
circumstances that would justify departure from this rule, and the Court need not resolve factual
disputes in order to resolve the Motion, the Court declines to hold an evidentiary hearing.
B.
Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution affords a criminal defendant the
right to "Assistance of Counsel." U.S. Const. amend. VI. The United States Supreme Court has
stated that "assistance which is ineffective in preserving fairness [of a trial] does not meet the
constitutional mandate."
Mickens
v. Taylor, 535 U.S. 162, 166 (2002).
A petitioner alleging
ineffective assistance of counsel in violation of the Sixth Amendment must meet the standard
established by the Supreme Court in Strickland
v. Washington,
466 U.S. 668 (1984). Under this
standard, the petitioner must show both deficient performance and prejudice-that
"counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment," id. at 687, and 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. This
5
Strickland test applies when the petitioner alleges ineffective assistance in the context of plea
negotiations and a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58 (1985).
On the issue of whether counsel's performance was deficient, a court "must indulge a
strong presumption that counsel's conduct falls within the wide range of reasonable professional
assistance."
Strickland, 466 U.S. at 689. When evaluating an attorney's strategic decisions, the
court should be "highly deferential" to the attorney's judgment and avoid hindsight.
Id. at 689,
691. Counsel has the "duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary." Id. at 691. However, while Strickland requires
counsel to "conduct a reasonable investigation into potential defenses," it does not oblige counsel
to "uncover every scrap of evidence that could conceivably help their client." Green v. French,
143 F.3d 865,892 (4th Cir. 1998), overruled on other grounds by Williams v. Taylor, 529 U.S.
362 (2000). The court should keep in mind that "what the lawyer did not miss is 'just as (or more)
important as what the lawyer missed'" in evaluating the effectiveness of counsel. United States v.
Roane, 378 F.3d 382, 411 (4th Cir. 2004) (quoting Coe v. Bell, 161 F.3d 320, 342 (6th Cir. 1998)).
To meet the prejudice requirement when the petitioner has pleaded guilty, the petitioner
"must show that there is a reasonable probability that, but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. If the petitioner
alleges that his counsel was.ineffective in failing "to investigate or discover potentially exculpatory
evidence, the determination whether the error 'prejudiced' the defendant by causing him to plead
guilty rather than go to trial will depend on the likelihood that discovery of the evidence would
have led counsel to change his recommendation as to the plea," which, in tum, "will depend in
large part on a prediction whether," based on an objective analysis, "the evidence likely would
have changed the outcome of a trial." Id. at 59-60.
6
Even if an attorney performed deficiently in advising a defendant, the "defendant may be
unable to show prejudice if at the Rule 11 proceeding the district court provides an admonishment
that corrects the misadvice and the defendant expresses that he understands the admonishment."
United States v. Akinsade, 686 F.3d 248,253 (4th Cir. 2012); see United States v. Swaby, 855 F.3d
233, 240 (4th Cir. 2017).
However, statements by the district court that are "general and
equivocal," rather than a "careful explanation," would not cure the "affirmative misadvice" of
counsel. Akinsade, 686 F.3d at 253.
II.
The Firearm Enhancement
The Court finds unpersuasive Wright's claim of ineffective assistance of counsel arising
from his attorney's failure to conduct sufficient investigation to identify mitigating evidence in
order to contest the two-level enhancement for possession of a firearm in furtherance of the drug
conspiracy. First, Wright's claim fails because his claim that the gun was not related to the drug
conspiracy is contradicted by his sworn testimony during the plea colloquy. During the Rule 11
hearing, when the Government stated the factual basis for the plea, it specifically stated that
"[d]uring the course of this conspiracy," Wright "knowingly possessed firearms and ammunition,"
described the placement of Wright's firearm and ammunition in a car with drugs on March 16,
2016, asserted that "Wright intended to use that firearm and ammunition to threaten one of Nikko's
drug customers, an individual who had recently assaulted one of Nikko's sisters and insulted
Nikko," and stated that he "did so in furtherance of the aforementioned
conspiracy."
drug trafficking
Plea Hr'g Tr. at 27-28, ECF No. 521-1. Notably, although Wright objected to a
different portion of the statement of facts alleging that he had brokered a particular drug transaction
while he was in the hospital, prompting an adjustment to the statement of facts, he otherwise agreed
to the statement offacts and expressed no objection to the facts relating to the firearm. He likewise
7
had signed the written version of the statement of facts containing the same factual assertions and
attested that "I have read [the Statement of Facts] and carefully reviewed every part of it with my
attorney" and "I understand it, and 1 voluntarily agree to it." Plea Agreement 11. Where Wright
acknowledged under oath that he had possessed the firearm on March 16, 2016 to threaten a drug
customer "in furtherance of' the "drug-trafficking conspiracy," id. at 10, his present claim that his
attorney's representation was deficient for failing to show that the gun possession was unrelated
to the drug conspiracy runs contrary to his sworn statements and thus necessarily fails.
See
Lemaster, 403 F.3d at 221-22. Based on these admissions, counsel was not ineffective for failing
to contest the firearm enhancement. See United States v. Pollard, 139 F.3d 895, 1998 WL 166337,
at * 1 (4th Cir. 1998) (unpublished) (finding that counsel was not deficient for failing to contest a
sentencing enhancement for a leadership role in a drug conspiracy where the facts supporting the
sentencing enhancement were contained in the statement of facts agreed to in the plea agreement).
Wright's
claim that his counsel was ineffective because he failed to investigate the
circumstances surrounding the gun possession is further contradicted by Wright's statements at
the plea hearing regarding his attorney. The plea agreement specifically provided that the parties
agreed to the two-level enhancement for possession of a dangerous weapon. At the plea hearing,
Wright affirmed to the Court that he had had "the opportunity to read and discuss this plea
agreement with [his] attorney before [he] signed it," and that he understood "the terms of the plea
agreement." Plea Hr'g Tr. 13-14. During the plea colloquy, the prosecutor specifically recounted
the parties' agreement relating to the Guidelines calculation, including the fact that the parties had
agreed to the firearm enhancement, and Wright acknowledged that he understood those provisions.
Furthermore, when the Court asked if he was "fully satisfied with [his attorney's]
advice,
representation, and counsel in this case," Wright responded, "Absolutely." Plea Hr'g Tr. 5. Where
8
Wright was fully aware when he pleaded guilty that his attorney had agreed to the two-level
firearms enhancement, his present claim that his counsel was ineffective for failing to take steps
to disprove the facts underlying that enhancement is contradicted by his testimony that he was
entirely satisfied with his counsel's performance.
Second, the record establishes that the facts that Wright now asserts his counsel should
have uncovered through further investigation were known to counsel and presented to the Court.
Although Wright claims that additional investigation would have shown that he transported the
gun and drugs on March 16,2016 to confront his sister's husband for beating his sister, during the
sentencing hearing, his attorney presented these same facts to the Court. Specifically, his attorney
stated:
What the particular connection of the firearm in this case was to this case as I think
the Court has discerned is his sister got into some sort of serious argument with her
husband and Mr. Wright sort of going the Sonny Corleone route tells one of his
guys, hey, get that gun and, you know, I think he made a bad decision on that
particular occasion .... But it's not a possession in furtherance of in the actual sense
that the guideline is intended to apply to and I think the government and I sort of
agree.
Sentencing Hr'g Tr. 18. His counsel also presented Wright's letter to the Court, in which Wright
informed the Court that his sister had called him for help on the night of the car accident because
of a domestic dispute, but that he has a good relationship with both his sister and her husband, the
man he intended to threaten with the Rossi revolver, and that the husband was in court supporting
Wright. The connection between the firearm and the assault on Wright's sister was documented
in a search warrant affidavit that detailed an intercepted call between Wright and his sister, and it
was referenced in the agreed-upon statement of facts and was thus undisputed. So where Wright's
counsel was aware of the underlying facts regarding Wright's motivation to protect his sister and
presented them to the Court, and the Court and the Government effectively accepted those facts,
the Court finds no grounds to conclude that defense counsel acted deficiently in failing to seek out
9
additional facts relating to that incident. See Strickland, 466 U.S. at 691 ("[W]hen the facts that
support a certain potential line of defense are generally known to counsel because of what the
defendant has said, the need for further investigation
may be considerably diminished or
eliminated altogether.").
Third, although Wright may implicitly be asserting that his attorney was constitutionally
deficient for agreeing to the two-level enhancement in the plea agreement, the Court finds no such
deficiency. Even accepting that Wright's possession of the firearm was motivated at least in part
by a desire to protect his sister, the facts that the firearm was transported in a car alongside cocaine
and that the person he planned to confront with the firearm was one of his drug customers provide
sufficient basis to support the inclusion of the enhancement.
As for whether Wright's counsel
should have accepted the enhancement, as a practical matter, the plea agreement gave Wright the
benefit of an agreed-upon sentencing recommendation that corresponded to the Guidelines range
that would have applied without the firearm enhancement.
The parties stipulated under Rule
11(c)(1 )(C) to a prison sentence between 78 and 96 months. Wright's total offense level under the
Guidelines without the enhancement for possession of a dangerous weapon would have been 27,
assuming that the other agreed-upon sentencing factors applied. Applying the criminal history
category of II established in the Presentence Investigation Report, the sentencing range for offense
level 27 would have been 78-97 months of imprisonment under the Guidelines.
With the two-
level firearm enhancement included, the Guidelines range would have been 97-121 months.
Where the plea agreement effectively guaranteed that Wright would be sentenced as if the
enhancement did not apply and that there could be no upward variance by the Court based on the
possession of a firearm or otherwise without Wright having the opportunity to withdraw his guilty
plea, see Fed. R. Crim. P. II(c)(1)(C), the Court concludes that defense counsel's agreement to
10
the firearm enhancement
was a reasonable
strategy and not deficient performance
Strickland. See Strickland, 466 U.S. at 689,691; Truesdale v. Moore, 142 F.3d 749,753-54
under
(4th
Cir. 1998).
Finally, Wright has not shown that he was prejudiced by his counsel's failure to further
investigate the facts underlying the firearm enhancement. He has not stated, nor can he establish,
that he would have rejected the plea agreement and insisted on going to trial had his attorney
objected to the firearm enhancement or pursued additional facts to undermine it. See Hill, 474
U.S. at 59. As discussed above, Wright and the Government agreed to recommend a sentencing
range which approximated the Guidelines range that would have applied without the firearm
enhancement and was below both the Guidelines range of 97-121 months set forth in the plea
agreement based on the inclusion of the firearm enhancement and the Guidelines range of 108135 months actually found by the Court at sentencing.
Thus, establishing that the firearm
enhancement did not apply would have done nothing to reduce the likely sentence after a guilty
plea.
On the other hand, had Wright proceeded to trial and been convicted, even without the
firearm enhancement he likely would have had an offense level of 30, due to the lack of any
downward adjustment for acceptance of responsibility, resulting in an advisory guideline range of
108-135 months of imprisonment.
Even if he could qualify for early release after completion of
the RDAP program, he would have received a reduction of no more than 12 months, see 28 C.F.R.
S 550.55(b)(5)(ii),
so his best case scenario after trial would have been a final sentence of96-123
months-above
the sentence he faced by accepting the Government's plea offer with the firearm
enhancement.
And by going to trial, Wright would have risked still receiving the firearm
enhancement, which if proven by the Government would have resulted in an offense level after
trial of32, a Guidelines range of 135-168 months, and no reduction through RDAP. Under these
11
circumstances, there was no logical reason for Wright to reject the Government's favorable plea
offer and proceed to trial even if his attorney had pursued and found evidence with which to
undermine the firearm enhancement.
Notably, Wright almost certainly would have been convicted at trial, because the
Government
had amassed substantial evidence against him and his co-conspirators.
The
investigation against the DTO lasted more than two years, and the Government had collected text
messages, recorded hundreds of phone calls through wiretaps, surveilled the members of the DTO,
and identified numerous witnesses. As detailed in a search warrant affidavit submitted to support
a search of a stash house controlled by Wright, the Government had intercepted communications
on the cell phones of Wright and several co-conspirators,
including conversations
and text
messages between and among Nikko Wright, Mario Wright, and other co-conspirators in which
they arranged drug transfers and pickups in Maryland, Delaware, and New Jersey. Based on such
intercepted communications, the Government conducted surveillance of Wright and others and
observed likely drug transactions.
Finally, as discussed above, Wright was a passenger in a car
that led the police on a high-speed chase that resulted in a car accident and the discovery of both a
firearm and cocaine in the vehicle. It would not have been reasonable for Wright, in the face of
this evidence, to reject a plea agreement stipulating to a maximum sentence of eight years of
imprisonment and instead face a likely sentence of somewhere between 9 and 14 years after trial,
based on the hope of securing a one-year reduction in his sentence through RDAP. See Hooper,
845 F.2d at 475.
Lastly, Wright cannot establish prejudice from his attorney's alleged failure to inform him
that the firearm enhancement would leave him ineligible for early release based on RDAP.
Prisoners have no statutory right to participate in drug treatment while incarcerated, see Moody v.
12
Daggett, 429 U.S. 78, 88 n. 9 (1976), nor do they have a constitutional right to early release from
a valid sentence, Greenholtz v. Inmates of Neb. Penal & Carr. Complex, 442 U.S. 1, 7 (1979).
Consequently, even if counsel's failure to object to or disprove a sentencing enhancement that
rendered Wright ineligible for the RDAP early release program could be deemed deficient, it
would not establish prejudice. See Jones v. United States, No. 08-105-01, 2010 WL 4484532, at
*5 (E.D.N.C. Oct. 25, 2010) (holding that there was no prejudice from a failure to object to a
9 2D 1.1(b)(1) enhancement at sentencing even though it rendered the defendant ineligible for
RDAP early release ).Since Wright cannot establish either of the prongs of the Strickland analysis,
his claim of ineffective assistance of counsel must fail.
III.
Certificate of Appealability
Wright has no absolute entitlement to appeal a district court's denial of the Motion. See
28 U.S.c. 92253(c)(1)(B).
To appeal this Court's denial of the Motion, Wright must obtain a
certificate of appealability ("COA").
Id. A COA may issue "only if the applicant has made a
substantial showing of the denial ofa constitutional right." Id. 92253(c)(2).
When a district court
dismisses a Motion to Vacate solely on procedural grounds, a prisoner must 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'" in order to be entitled to a CGA. Rose v. Lee, 252 F.3d
676,684 (4th Cir. 2001) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). When a district
court reaches the merits, as it has here, a petitioner must demonstrate that reasonable jurists would
find the district court's assessment of the constitutional claims debatable or wrong.
Slack v.
McDaniel, 529 U.S. 473,484 (2000). Because Wright has made no such showing, this Court will
not issue a COA. Although this Court declines to issue a COA, Wright may still seek a CGA from
13
the Fourth Circuit. See Fed. R. App. P. 22(b)(1) (stating that if a district judge denies a COA, a
petitioner "may request a circuit judge to issue it").
CONCLUSION
For the foregoing reasons, Wright's Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. ~ 2255 is DENIED. The Court declines to issue a certificate of appealability.
A separate Order shall issue.
Date: January 15,2019
THEODORE D. CHUAN
United States District Ju e
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?