Gee v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 2/16/2021. (heps, Deputy Clerk)

Case 8:19-cv-00286-DKC Document 2 Filed 02/16/21 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
GEORGE EARL GEE
:
v.

:

Criminal No. DKC 15-0317-3
Civil Action No. DKC 19-0286

:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution is the motion to
“correct”

sentence

filed

by

Petitioner

George

Earl

Gee

(ECF No. 638), as well as a request to supplement this filing.
(ECF No. 663).

The issues have been briefed, and the court now

rules, no hearing being deemed necessary.

Local Rule 105.6.

For

the following reasons, the motion will be denied, as will the
request to supplement.
I.

Background
On October 21, 2016, Petitioner plead guilty, pursuant to a

Fed.R.Crim.P.

11(c)(1)(C)

plea

agreement

(a

“C-Plea”),

to

Conspiracy to Distribute and Possess with Intent to Distribute
Controlled

Substances

841(b)(1)(A).
superseding

in

violation

of

21

U.S.C

§§

846

and

(ECF No. 473) (citing ECF No. 456, the second

indictment).

On

March

27,

2017,

Petitioner

was

sentenced to 216 months’ imprisonment, the punishment stipulated
to in the C-Plea.

On May 26, 2017, Mr. Gee filed a motion for an

Case 8:19-cv-00286-DKC Document 2 Filed 02/16/21 Page 2 of 17

out-of-time appeal, arguing that his counsel William Mitchell,
Jr., had failed to file a timely appeal despite being instructed
to do so by Mr. Gee.

(ECF No. 595).

This motion was denied by an

order on June 12 that explained that upon a finding of “excusable
neglect or good cause,” a district court is allowed to extend the
normal fourteen-day deadline to file an appeal after the entry of
judgment by thirty days, but no more.

As Mr. Gee’s request came

outside that additional thirty-day window, the extension request
was found to be barred.

(ECF No. 597, at 1-2).

Nevertheless,

Petitioner filed a notice of appeal of his case to the Fourth
Circuit. (ECF No. 599). The appellate court appointed Julie Marie
Reamy to represent Mr. Gee on his direct appeal.
Ultimately,

the

Fourth

Circuit

affirmed

the

(ECF No. 602).

District

Court’s

judgment on January 29, 2018 (ECF No. 624) and issued its mandate
effectuating this judgment on February 20 (ECF No. 629), and so
his conviction became final on April 30, 2018.1

1

United States v. Sanders, 247 F.3d 139, 142 (4th Cir. 2001),
held that a conviction became final for § 2255 purposes on the
date judgment was entered.
However, after the Supreme Court
decided Clay v. United States, 537 U.S. 522, 527 (2003), holding
that finality attaches when the time for filing a certiorari
petition expires, the Sanders holding has been called into
question. Most courts now assume that, when no appeal is taken,
a judgment becomes final when the time for filing such an appeal
expires. See Brown v. United States, ELH-16-4075, 2017 WL 4946990,
at *2 (D.Md. Nov. 1, 2017) (discussing this approach and citing
more recent authority). Like in Clay, this means that Mr. Gee’s
conviction became final “90 days after entry of the Court of
Appeals’ judgement, and 69 days after the issuance of the appellate
2

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Kevin McCants, current counsel for Mr. Gee, filed a motion to
“correct” his sentence under 28 U.S.C. § 2255 on Petitioner’s
behalf on January 30, 2019.

(ECF No. 638).

This motion makes

reference to (but did not attach) a “24-page pro se supplemental
brief Gee filed in the direct appeal” that “established he did not
fully grasp the concessions he made in his plea agreement as to
quantity and acceptance of a leadership role in the conspiracy.”2
On

February

1,

2019,

the

United

States

of

America

(“the

government”) was directed to file an answer within sixty days.
(ECF No. 639).

After a number of extensions, the government

responded in opposition on May 22, 2019.

(ECF No. 650).

While

Mr. Gee was given an extension to file his reply, on November 25,
2019, the court received what appeared to be another § 2255 motion,
this time prepared by Mr. Gee himself and submitted directly from

court’s mandate,” when the deadline for petitioning for a writ of
certiorari expired. 537 U.S., at 525. Ninety days after January
29, 2018 is April 29, 2018, which is a Sunday, and the next day,
April 30, is exactly sixty-nine days after the issuance of the
mandate.
Regardless, this ninety-one day difference does not
affect the timeliness determination in this case.
2

The Fourth Circuit noted that it had reviewed the claims
detailed in these briefs but does not discuss their content and
summarily declared them “without merit.” United States v. Gee,
709 Fed.Appx. 240, 241 (4th Cir. 2018).
Such consideration and
rejection on direct appeal alone might be fatal to inclusion of
this claim in Petitioner’s § 2255 motion, but, as the specifics of
these briefs were not discussed by the Fourth Circuit, this
argument will be considered.
3

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prison. (ECF No. 663).3

The filing includes an affidavit from Mr.

Gee that catalogues a litany of complaints Petitioner has with Mr.
Mitchell’s former representation including that he “discovered
Attorney Mitchell was not being truthful” and had misinformed him
about the nature of his offense, the effect of his criminal
history, and the penalties he stood to face. (ECF No. 663-1).

As

the purpose of the filing was not clear on its face, however, on
November 26, 2019, the court directed Mr. Gee’s counsel to report
back within fourteen days on how to construe this submission. (ECF
No. 664).

On December 10, 2019, Mr. McCants prepared a status

report in which Mr. Gee asked that these supplemental arguments be
considered as “relevant issues to the 2255 litigation [already] at
issue.”

(ECF No. 665).4

A paperless notice was issued giving the

3

Mr. Gee therefore gets the benefit of the “prison mailbox
rule” in that this second purported motion to correct/vacate is
considered “filed” when he put it into the prison mail system
(presumably in or around November 7, 2019, when he signed it). As
this earlier date of filing does not affect the motion’s
timeliness, the date it was docketed will be used for simplicity’s
sake.
4

This status report clarified, somewhat, the meaning of this
second filing. It reported, among other things, that Mr. Gee does
not want it to be inferred from his direct filing that he wants
new counsel or to continue pro se.
(ECF No. 665). Instead he
simply wants the legal argument he outlines “to be adopted by
Counsel” and incorporated into his original petition. (ECF No.
665). It seems also to shed some light on why the initial petition
is labeled a motion to “correct,” and not to vacate, Petitioner’s
sentence; Mr. McCants writes that, “Mr. Gee wants the [court] to
know the whole purpose of his 2255 petition is to urge the
government to allow him to accept the original plea offer before
4

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government until December 24, 2019, to respond to Mr. Gee’s
apparent attempt to supplement his original petition.

After

another extension, the government filed an opposition to this new
motion on January 9, 2020.

(ECF No. 669).

Mr. Gee ultimately did

not file a reply to either of his motions and the time to do so
has expired.
II.

Motion to Correct Sentence
A.

Standard of Review

To be eligible for relief under § 2255, a petitioner must
show, by a preponderance of the evidence, that his “sentence was
imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law.”

28 U.S.C. § 2255(a).

Alternatively, “the

scope of review of non-constitutional error is more 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

he had to switch lawyers when he learned his trial counsel Harry
Tun was suspended from practices law.”
What this purported,
original plea offer entailed, however, is never made clear. The
second motion, nonetheless, is properly construed as a request to
supplement Mr. Gee’s pending § 2255 motion.
5

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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).
B.

Ineffective Assistance of Counsel

Petitioner’s motion to correct his sentence, and its request
to supplement it, center around an alleged failure of Petitioner’s
former counsel fully to explain to him the effects of his plea ——
in particular that it foreclosed his right to challenge the drug
weight involved in his conspiracy to distribute and to possess
with intent to distribute controlled substances conviction —— or
the necessary elements of that charge under 21 U.S.C. § 846.

(ECF

Nos. 638, at 3, and ECF No. 663, “GROUND ONE” at 4).
Mr. Gee concedes that he admitted to being part of the
conspiracy and signed the “Government’s written proffer,” but he
claims that he “did not fully appreciate the complete agreement,”
particularly on these fronts.

He argues that his confusion was

exacerbated by a shuffling of counsel, starting with Mr. Mitchell
as his appointed counsel and ending with his re-appearance as
6

Case 8:19-cv-00286-DKC Document 2 Filed 02/16/21 Page 7 of 17

counsel close to trial and after the withdrawal of four different
attorneys

in

included).

the

interim

(Mr.

(ECF No. 638, at 2-3).

Mitchell’s

initial

withdrawal

It also asserts more vaguely,

as a purported second supplemental basis of relief, that “Counsel
rendered ineffective assistance for providing ‘misinformation’
about the facts in relation to the consequences of the plea.”

He

asserts that his Sixth Amendment right to counsel was thereby
violated. (ECF No. 663, “GROUND TWO” at 5).

This claim, however,

is entirely duplicitous of the ineffective assistance claim raised
in Mr. Gee’s main petition and so his request to add it as a
supplement will be denied.

The supplement also adds that Mr.

Mitchell “failed to object” to the district court finding him a
career offender under § 4B1.1(a) at sentencing.

(Id., “GROUND

THREE” at 7).
1.
To

Legal Standard
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
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the attorney’s performance if it is clear that no prejudice could
have resulted from it.

Strickland, 466 U.S. at 697.

In the context of a § 2255 petition challenging a conviction
following a guilty plea, a defendant establishes prejudice by
demonstrating “a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985);

accord United States v. Mooney, 497 F.3d 397, 401 (4th Cir. 2007).
Moreover, Petitioner “must convince the court” that such a decision
“would have been rational under the circumstances.”
Kentucky, 559 U.S. 356, 372 (2010).
preferences,

therefore,

are

not

Padilla v.

“The challenger’s subjective

dispositive;

what

matters

is

whether proceeding to trial would have been objectively reasonable
in light of all of the facts.”

United States v. Fugit, 703 F.3d

248, 260 (4th Cir. 2012).
A petitioner who pleads guilty has an especially high burden
to establish 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

8

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guilty plea must meet a “substantial burden . . . to avoid the
plea[.]”
2.

Id.
Timeliness

As a threshold matter, Petitioner’s “GROUND THREE” claim in
his request to supplement is untimely.

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.
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)).

9

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Mr. Gee’s pro se supplement was filed on November 25, 2019,
significantly more than a year after his conviction became final
on April 30, 2018.

As the alleged first and second grounds in

Petitioner’s supplement relate back to the central claims in his
timely motion, and arise out of the same operative fact, i.e.,
alleged mistakes by counsel in informing him about the plea and
its consequences regarding quantity, they are timely despite their
time of filing. “Ground Three,” however, arises out of an entirely
new theory of how Mr. Mitchell failed in his duties: counsel, Mr.
Gee argues, should have objected to the “improper application” of
the career offender provision of the U.S. Sentencing Guidelines to
his sentence.

(ECF No. 663, at 7).

This claim therefore does not

relate back to any claims in his first petition, and Mr. Gee is
not able to point to newly discovered facts or rights to revive
it.

The third ground for relief that Petitioner wishes to add to

his motion to correct his sentence will be denied.
3.

Contradicted by Sworn Statements

The government argues that Petitioner’s surviving ineffective
assistance claims — that he did not understand the plea or its
downstream effect to him (as emphasized in both the petition and
the request to supplement it) — are contradicted by the statements
he

made

under

oath.

Even

if

counsel’s

representation

was

deficient, moreover, the government argues that Petitioner does
not allege that but for his alleged failures he would have gone to
10

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trial.

The government argues that Petitioner does not assert

prejudice because he cannot: his post-trial sentencing guidelines
would have well outweighed his sentence post plea.

It points out

that this is true, to a lesser extent, even if ultimately he was
not found to be a Career Offender and was found guilty of only the
conspiracy count to which he plead guilty.5

Nonetheless, such a

projection is highly conservative, as the government points out
that he would have faced three discrete counts under 21 U.S.C.
§ 841 as well as two “telephone counts” for commission of a drug
felony over the phone under 21 U.S.C. § 843. (ECF No. 650, at 6-7).
Petitioner’s failure to argue, let alone show, prejudice is
likely fatal to his motion.

Regardless, the effectiveness of

Petitioner’s counsel need not be scrutinized as Mr. Gee’s claimed

5

Although the plea stipulated to 216 months’ imprisonment,
its guidelines calculations projected that Petitioner would have
a final offense level of thirty-three or thirty-four for the single
conspiracy count to which he plead guilty, depending on whether he
was designated a Career Offender. While the plea states that there
was no agreement regarding criminal history (see ECF No. 473, ¶
7), it does note that he would be in Criminal History Category VI
if he was designated as a career offender. (Id., ¶ 6(e)). The
government implies that “with his prior history,” he likely would
have been determined to be a Career Offender. It notes that he
nonetheless stood to face a stiffer penalty than the plea offered,
even if he “merely” was found to be in Criminal History Category
V and with an offense level of thirty-six — the projected offense
level for the conspiracy count alone, without the two-level
reduction for his acceptance of responsibility and one-level
reduction for timely notice of an intention to pled guilty, but
also without Career Offender status. (ECF No. 650) (referencing
ECF No. 473, ¶ 6(d)). An offense level of thirty-six and a Category
V criminal history produces a guideline range of 292-365 months’
imprisonment.
11

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misunderstandings

are

directly

contradicted

by

statements under oath as the government asserts.

his

sworn

(Id., at 7)

(citing United States v. Lemaster, 403 F.3d 216, 221 (4th Cir.
2005) (“[I]n 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.”) (internal quotation marks omitted)).
The

stipulated

facts

of

the

plea

clearly

lay

out

the

quantities of drugs involved in this case and the potential
penalties those quantities carried under the conspiracy count.
The

government

succinctly

writes

in

opposition

to

attempted supplement:
The plea agreement itself notes that on
three occasions Gee returned from New Jersey
with at least 390 grams, 390 grams, and 400
grams, respectively, of cocaine powder. The
plea agreement statement of facts also
describes Gee’s distribution of 21 grams of
powder cocaine and 20 grams of crack cocaine
to coconspirators.
That amount of cocaine
powder by itself—1.2 kilograms—would be
sufficient for a conviction under 21 U.S.C.
§ 841(b)(1)(B) and trigger a mandatory 5 year
minimum and up to 40 years maximum in prison,
assuming no 21 U.S.C. § 851 enhancement. But,
of course, up until shortly before Gee’s plea
there was a 21 U.S.C. § 851 enhancement notice
pending in the case, and that enhancement
would have resulted in a mandatory minimum of
10
years
to
life
under
21
U.S.C.
§
841(b)(1)(B) or 20 years to life under 21
U.S.C. § 841(b)(1)(A).

12

Mr.

Gee’s

Case 8:19-cv-00286-DKC Document 2 Filed 02/16/21 Page 13 of 17

(ECF No. 669, at 1-2);(see ECF No. 473-1, “Stipulated Facts”).
The government goes on to explain that this does not account for
the fact that a portion of the cocaine was cooked into crack
cocaine, or the four to five kilograms of cocaine which Gee and
his supplier in New York discussed purchasing, so that Mr. Gee
could

distribute

a

portion.

Therefore,

it

was

“reasonably

foreseeable,” to Mr. Gee from the “bare facts” of the plea, the
government argues, that the conspiracy in which he was involved
would

have

resulted

in

“the

distribution

of

well

over

five

kilograms of cocaine and more than 280 grams of crack cocaine.”
(ECF No. 669, at 2).
The plain terms of the plea, also, explicitly lay out the
basic elements of the crime to which Mr. Gee admitted culpability.
As the government asserts in its first opposition, the agreement
not only details what a drug conspiracy charge would require it to
prove at trial but includes the amounts of substances involved.
(ECF No. 650, at 1) (citing ECF No. 473, “Elements of the Crime,”
¶ 2).

The government also, rightly highlights the last page of

the plea agreement and its recitation above the signature line
that, by signing, the defendant acknowledges that he has read and
reviewed the terms of the agreement, in full, and agrees to it, in
full. (ECF No. 473, at 8).

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Any

claim

that

Petitioner

misunderstood

these

foreclosed by his own subsequent representations.

terms

is

At Mr. Gee’s

Rule 11 hearing, the court directed him to this signature page and
asked if he had signed it.

He said he had and after having read

it, having reviewed it with his attorney, and having made sure he
understood it.

(ECF No. 650, at 4) (discussing ECF No. 605, the

hearing transcript at 10-11).

The stipulated facts were also read

into the record; Petitioner was asked if the facts were true and
if he was “in fact, guilty of Count One of the superseding
indictment?” and he responded yes and yes.

(See ECF No. 605, at

19) (discussing ECF Nos. 473, at 8, and 456, the second superseding
indictment).

Petitioner cannot subsequently claim he did not

understand the nature of his plea.

The ineffective assistance of

counsel claims will be denied.
C.

A Factual Basis for His Plea

Petitioner’s request to supplement also re-asserts a claim he
made in his appeal to the Fourth Circuit: “The District Court has
failed to accept a sufficient ‘factual basis’ to Petitioner Gee’s
plea, pursuant to the element of ‘an agreement between two or more
persons,’ in violation of Rule 11(b)(3)” of the Fed.R.Crim.P. (ECF
No. 663, “GROUND FOUR,” at 8).6

6

If the merits of this petition

The § 2255 form used by Petitioner to file his supplement
asks, as elsewhere, if he raised this argument on direct appeal
and he marked “no” and commented “Appellate Attorney wouldn’t raise
14

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were reached, Mr. Gee would have an uphill battling to show this
non-constitutional defect in his conviction: even assuming he
could prove such a defect existed, he would have to show either a
manifest injustice occurred as a result or that his conviction was
at odds with the basic demands of fair procedure.
Regardless, the merits need not be addressed.

If Mr. Gee

were raising this issue for the first time, as he claims, he would
be time barred as this November 25, 2019, filing was submitted far
more than a year after his conviction became final and this claim
is not based on any newly discovered fact(s).

Mr. Gee has already

raised this issue on appeal, however, and lost; this court has
said

that

a

petitioner

may

not

escape

the

Fourth

Circuit’s

consideration and rejection of a legal argument on direct review
by incorporating it into a § 2255 motion.

Brown v. United States,

No. DKC 07-0170, 2011 WL 886214, at *5 (D.Md. Mar. 11, 2011)
(citing, among others, Anderson v. United States, 468 F.Supp.2d
780, 785 (D.Md. 2007) (“It is well-settled law that an issue that
has been determined on direct appeal may not be relitigated in a
§ 2255 motion.”).

In Brown it was noted that “the bar is even

it” when asked why. (ECF No. 663). This, however, is directly
contradicted by the Fourth Circuit opinion that highlights that
this was counsel’s exact and central argument in his appeal before
that court, down to his central reliance on the Ketchum case. Gee,
709 Fed.Appx. at 241 (citing United States v. Ketchum, 550 F.3d
363, 366 (4th Cir. 2008)). In fact, his counsel highlights in his
central § 2255 motion that Mr. Gee had raised this argument on
appeal. (ECF No. 638, at 3).
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stronger [] where the Fourth Circuit denied [the petitioner’s]
claim on the merits,” as here.

Id.; see Gee, 709 Fed.Appx. at 241

(“Because Gee agreed to the factual basis before entering his
guilty plea, his belated objections are without merit, and we find
that the district court developed an appropriate factual basis.”).
Petitioner’s request to supplement his petition with this claim
will be denied.
III. Conclusion
For the foregoing reasons, Petitioner’s motion to correct his
sentence, as well as his request to file a supplemental motion 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
16

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Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003). Where a motion
is denied on a procedural ground, a certificate of appealability
will not issue unless the petitioner can “demonstrate both (1) that
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
(2) that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”

Rose v.

Lee, 252 F.3d 676, 684 (4th Cir. 2001) (internal marks omitted).
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

17

A