Berrios v. Lawlor et al
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 9/15/2022. (c/m 9/16/2022 - dg3s, Deputy Clerk)
Case 8:20-cv-03193-TDC Document 34 Filed 09/15/22 Page 1 of 7
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
OSBALDO LEMUS BERRIOS,
Civil Action No.: TDC-20-3193
MICHAEL E. LAWLOR and
LAWLOR & ENGLERT,LLC,
Self-represented Plaintiff Osbaldo Lemus Berrios, a state inmate currently confined at the
Maryland Correctional Institution Hagerstown in Hagerstown, Maryland, has filed a Complaint
against Defendants Michael E. Lawlor and the law firm of Lawlor & Englert, LLC in which he
alleges a violation of his right to the effective assistance of counsel under the Sixth Amendment
to the United States Constitution, as well as common law claims of fraud and breach of contract,
in connection with Lawlor's representation of Berrios in state post-conviction proceedings.
Pending before the Court is Defendants' Motion to Dismiss, ECF No. 21, which Berrios opposes.
Upon review of the submitted materials, the Court finds that no hearing is necessary. See D. Md.
Local R. 105.6.
For the reasons set forth below, Defendants' Motion to Dismiss will be
Berrios, who is a citizen of Guatemala, was sentenced to a 50-year sentence by the Circuit
Court for Montgomery County, Maryland following his conviction on charges of second-degree
murder and a related firearm offense. In 2016, Lawlor was appointed by the Office of the Public
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Defender to represent Berries during post-conviction proceedings. According to Berries, Lawlor
never filed a petition on his behalf and instead requested eight "postponements" over a three-year
period. Compl. at 4, ECF No. 1. Then, in November 2019, Lawlor withdrew from the case based
on an asserted conflict of interest. The conflict of interest arose because Berrios had maintained
that a government witness, Freddy Monroy, had framed him for a murder that Monroy actually
committed, and Lawlor's law partner represented Monroy. Berrios alleges that Lawlor had
questioned him about Monroy during a 2018 prison visit and was aware of Berrios's allegations
about Monroy, yet waited a year before withdrawing from the case.
According to Berrios, the Office of the Public Defender's appointment of Lawlor to
represent him in his post-conviction proceedings amounted to a contract that Lawlor breached by
failing to file a petition or otherwise provide effective assistance ofcounsel. For example,although
Berrios attempted to call Lawlor from prison on multiple occasions, he was only able to reach him
twice, and both times Lawlor refused to discuss legal matters on the phone but then did not visit
him as promised. Berrios also claims that Lawlor attempted to charge him a fee for the
representation even though he was being paid by the court. In his view, this attempt to collect a
fee amounted to a "fraudulent act." Id. at 5.
In his Complaint, Berrios alleges claims of a violation of the Sixth Amendment right to
effective assistance of counsel, fraud, and breach of contract. Because he is an undocumented
immigrant who is a citizen of Guatemala, Berrios has asserted diversity jurisdiction for his state
law claims. See 28 U.S.C. § 1332(a)(1)(2018); Assafv. Trinity Med. Ctr., 696 F.3d 681,685 n.l
(7th Cir. 2012)(stating that where the parties had agreed that the plaintiff was not admitted to the
United States as a permanent resident, the court deemed him to be a citizen of Syria only, not of
his state of residence, Illinois); Berrios v. Keefe Commissary Network. LLC^ No. TDC-17-0826,
Case 8:20-cv-03193-TDC Document 34 Filed 09/15/22 Page 3 of 7
2018 WL 6462840, at *2(D. Md. Dec. 10, 2018). He seeks over $5 million in compensatory and
In the Motion to Dismiss, Defendants acknowledge that Lawlor was appointed in August
2016 by the Office of the Public Defender to represent Berrios in state post-conviction
proceedings. Mot. Dismiss at 1, ECF No. 21. At that time, Lawlor was an attorney at Lawlor &
Engiert in Greenbelt, Maryland. Id. On January 1, 2018, Lawlor left that law firm and joined the
law firm of Brennan, McKenna & Lawlor. Id. Defendants do not dispute that Lawlor did not file
or argue a post-conviction petition on behalf of Berrios before he withdrew as counsel in
November 2019. Defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(6) on
the grounds that the Sixth Amendment claim fails because Lawlor was not a state actor and that
Berrios has failed to state plausible claims of fraud and breach of contract.
To defeat a motion to dismiss under Rule 12(b)(6), the complaint must allege enough facts
to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is
plausible when the facts pleaded allow "the Court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. Legal conclusions or conclusory statements
do not suffice. Id. A court must examine the complaint as a whole,consider the factual allegations
in the complaint as true, and construe the factual allegations in the light most favorable to the
plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. ofComm 'rs ofDavidson
Cnty., 407 F.3d 266,268(4th Cir. 2005). A self-represented party's complaint must be construed
liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, "liberal construction does not
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mean overlooking the pleading requirements under the Federal Rules of Civil Procedure." Bing v.
Brivo Sys., LLC,959 F.3d 605,618 (4th Cir. 2020).
Berrios's Sixth Amendment claim is a federal constitutional claim asserted under 42 U.S.C.
§ 1983. Section 1983 "'is not itself a source of substantive rights,' but merely provides 'a method
for vindicating federal rights elsewhere conferred.'" Albright, 510 U.S. at 271 (quoting Baker v.
McCollan,443 U.S. 137, 144 n.3(1979)). Section 1983 states, in part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress ....
42 U.S.C.§ 1983(2018). At its core, a claim asserted under § 1983 is directed to unlawful conduct
under color of law. See Owens v. Bait. City State's Attorney Office, 161 F.3d 379, 402 (4th Cir.
2014). To prevail on a § 1983 claim, a plaintiff must demonstrate that: (1) the defendant violated
a right secured by the United States Constitution or federal law; and(2)the act or omission causing
the violation of a right was committed by a person acting "under color of state law." West v.
Atkins, 487 U.S. 42,48(1988). The United States Supreme Court has held that "a public defender
does not act under color of state law when performing a lawyer's traditional functions as counsel
to a defendant in a criminal proceeding." Polk County v. Dodson, 454 U.S. 312, 325 (1981).
Private criminal defense attorneys also do not act under color ofstate law even ifthey are appointed
by the court and thus cannot be liable under § 1983. See Deas v. Potts, 547 F.2d 800, 800 (4th
Cir. 1976)(retained counsel); see also Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980)
(state-appointed counsel). Because Lawlor was not a state actor for purposes of his representation
of Berrios, the Sixth Amendment claim necessarily fails and will be dismissed.
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Berrios asserts a claim ofcommon law fraud based on the allegation that Lawlor asked him
to pay a fee for his legal services even though he was appointed by the Office of the Public
Defender. Defendants assert that Berrios has failed to state a plausible claim of fraud and that,
more specifically, the fraud claim has not been alleged with sufficient particularity as required by
Federal Rule of Civil Procedure 9(b).
The elements of a fraud claim under Maryland law are: "(1) that the defendant made a
false representation to the plaintiff,(2)that its falsity was either known to the defendant or that the
representation was made with reckless indifference as to its truth,(3) that the misrepresentation
was made for the purpose of defrauding the plaintiff, (4) that the plaintiff relied on the
misrepresentation and had the right to rely on it, and (5) that the plaintiff suffered compensable
injury resulting from the misrepresentation." Gourdine v. Crews, 955 A.2d 769, 791 (Md. 2008).
Berrios has provided a copy of a July 11, 2009 letter from Lawlor stating his standard fees for
representation for post-conviction work, but the letter pre-dates Lawlor's 2016 appointment by the
Officer of the Public Defender by over six years. Here, even if Lawlor's alleged request for
payment could be construed to be a false representation, whether as a false statement that he was
entitled to payment or a false statement that he was not being paid by the state, Berrios has not
claimed that he actually paid Lawlor. Accordingly, Berrios has not alleged that he actually relied
on the false representation or that he suffered any injury from it. Where Berrios has not alleged
facts showing that the fourth and fifth elements can be established, he has failed to state a plausible
To the extent that the Complaint could be construed as asserting a fraud claim based on the
alleged conflict ofinterest, Berrios has asserted no facts demonstrating that Lawlor made any false
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representation on this issue, much less one made for the purpose of defrauding Berrios, or that
Berrios relied on any such false representation. At a minimum, Berrios has not alleged the false
statement with sufficient particularity to meet the requirements of Rule 9(b). See Edmonson v.
Eagle Nat 7 Bank,922 F.3d 535,553(4th Cir. 2019)(stating that "[t]o satisfy Rule 9(b), a plaintiff
must plead the time, place, and contents of the false representations, as well as the identity of the
person making the misrepresentation and what he obtained thereby"). Accordingly,the Court will
grant the Motion to Dismiss as to the fraud claim.
Breach of Contract
Berrios's breach of contract claim is based on his assertion that Lawlor had a contract to
represent Berrios which he breached by failing to file a post-conviction petition on Berrios's
behalf. Defendants argue that Berrios fails to state a claim for breach of contract because Lawlor
had no contract with either the Office of the Public Defender or Berrios, and Berrios has failed to
allege facts sufficient to show any breach of a contract.
Under Maryland law,"[t]o prevail in an action for breach of contract, a plaintiff must prove
that the defendant owed the plaintiff a contractual obligation and that the defendant breached that
obligation." Taylor v. NationsBank, N.A., 776 A.2d 645, 651 (Md. 2001). Here, Berrios has not
asserted that he and Lawlor entered into a contract for legal services. To the extent that he
references Lawlor's appointment by the Office of the Public Defender, he has not provided facts
sufficient to support the conclusion that the appointment constituted a binding contract which he
has a right to enforce. Even ifthe Court could consider the August 22,2016 letter from the Office
of the Public Defender informing Lawlor of his appointment, which Berrios attached to his
memorandum in opposition to the Motion, Lawlor did not sign the letter or expressly agree to its
terms. See Opp'n Ex. 9, ECF No. 33-1. Moreover, the Complaint does not allege any acts or
Case 8:20-cv-03193-TDC Document 34 Filed 09/15/22 Page 7 of 7
omissions by Lawlor that violated any requirements set forth in the letter. The letter contains no
terms that imposed on Lawlor a contractual obligation to file a post-conviction petition, much less
by any specified date. A general claim that Lawlor's representation was negligent or involved
legal malpractice does not give rise to a breach ofcontract claim absent a specific failure to conduct
a required action under the contract. See Fishow v. Simpson^ 462 A.2d 540, 543-44(Md. 1983)
(holding that alleged legal malpractice does not give rise to an action for breach of contract absent
the "employment of an attorney to perform a specific service in accordance with clearly stated
instructions from the client-employer"). Notably, Lawlor's motions to extend the filing deadline
were granted, such that there is no claim that Berrios's right to file a post-conviction petition was
Accordingly, where the Complaint does not allege facts showing that there was a contract
enforceable by Berrios and that Lawlor breached any specific term of that contract, the breach of
contract claim will be dismissed.
For the foregoing reasons, Defendants' Motion to Dismiss will be GRANTED. A separate
Order shall issue.
Date: September 15, 2022
THEODORE D. CHJ
United States Distrii
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