Quarles v. USA - 2255, No. 8:2004cv03496 - Document 1 (D. Md. 2011)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 3/7/11. (cms, Deputy Clerk)
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Quarles v. USA - 2255 Doc. 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : JAMAR DAMIAN QUARLES : v. : Civil Action No. DKC 04-3496 Criminal Case No. DKC 01-0273 : UNITED STATES OF AMERICA : MEMORANDUM OPINION Presently pending and ready for resolution in this case is a motion by Petitioner Jamar Quarles to vacate, set aside, or correct his sentence. (ECF No. 53). briefed and the court now rules. The issues are fully For the reasons that follow, the motion will be denied. I. Background On May 14, 2001, a grand jury issued an indictment against Petitioner Jamar Damian Quarles charging him with two counts of illegal possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). The first count alleged that defendant possessed a .38 caliber revolver on September 17, 1999; the second alleged that defendant possessed a sawed-off, loaded 12gauge shotgun on May 7, 2001.1 After a two-day trial, a jury convicted Quarles of both counts on October 10, 2001. 1 The underlying facts of this case are described in an earlier opinion of the United States Court of Appeals for the Dockets.Justia.com At sentencing on March 11, 2002, this court sentenced Quarles to 120 months imprisonment on count one and 24 months, consecutive, on count two. supervised release. He also received three years of On direct appeal, on May 27, 2003, the United States Court of Appeals for the Fourth Circuit affirmed Quarles conviction. See generally United States v. Quarles, 330 F.3d 650 (4th Cir. 2003). petition for writ of The Supreme Court denied Quarles certiorari on October 20, 2003. See Quarles filed the instant motion on October 25, 2004.2 (ECF Quarles v. United States, 540 U.S. 977 (2003). No. 53). 57). II. The government opposed on March 4, 2005. (ECF No. Quarles did not file a reply. Standard of Review Title 28 U.S.C. § 2255 requires a petitioner to prove by a preponderance of the evidence that the 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. A pro se movant is of course entitled to have his Fourth Circuit that addressed Quarles direct appeal. See United States v. Quarles, 330 F.3d 650, 651-53 (4th Cir. 2003). 2 The Clerk did not docket the motion until October 25, 2004, but the motion was signed on October 19. Under the mailbox rule, the court treats the earlier date as the filing date. Houston v. Lack, 487 U.S. 266, 272-73 (1988). 2 arguments reviewed with appropriate consideration. See Gordon v. Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978). But if the Section 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. 28 U.S.C. § 2255(b). III. Analysis Quarles makes three arguments in support of his motion. First, he maintains that he received a sentence in excess of the statutory maximum for a violation of 18 U.S.C. § 922(g)(1). Second, he contends that trial counsel was ineffective because she agreed with the government that Quarles was eligible for a maximum Guidelines sentence of 150 months, pursuant to Section 5G1.2 of the Sentencing Guidelines. Third, he asserts that his appellate counsel was ineffective because she failed to argue that that certain testimony by a government witness violated Federal Rule of Evidence 404(b). A. Excessive Sentence Quarles first argues that this court lacked jurisdiction to sentence him to 144 months because the statutory maximum for an offense under correctly 924(a)(2). 18 states U.S.C. the § 922(g) statutory is maximum. ten years. See 18 Quarles U.S.C. § Quarles overlooks the fact, however, that he was convicted of two separate counts of violating Section 922(g), 3 each carrying a separate statutory maximum penalty. Thus, each count carried a statutory maximum of 120 months. The court also had discretion to run the counts consecutively. See 18 U.S.C. § 3584(a) ( If multiple terms of imprisonment are imposed on a defendant at the same time . . . the terms may run concurrently or consecutively. ). Thus, the statutory provisions would have permitted a total term of imprisonment of 240 months. month combined sentence he received was well The 144- under that threshold.3 B. Ineffective Assistance of Counsel Quarles alleged second ineffective and third assistance claims of are counsel. both Such premised on claims are governed by the well-settled standard adopted by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland standard, the petitioner must show both that his attorney s performance reasonableness and that fell he below an suffered 3 objective actual standard prejudice. of See In addition, as the government observes, this claim has likely been waived by Quarles failure to raise the issue on appeal. In order to collaterally attack a conviction or sentence based upon errors that could have been but were not pursued on direct appeal, the movant must show cause and actual prejudice resulting from the errors of which he complains. United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010). Although Quarles makes the cursory assertion that the errors were not raised because of the ineffectiveness of trial counsel and appellate counsel, that brief statement would likely be insufficient to establish cause and prejudice. 4 Strickland, 466 U.S. at 687. To demonstrate actual prejudice, he must show there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Id. at 694. In applying Strickland, there exists 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. See id. 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 fact. occurred, Frye v. not the Lee, conduct s 235 F.3d consequences 897, (4th 906 after Cir. the 2000). Furthermore, a determination need not be made concerning the attorney s performance if it is clear that no prejudice would have resulted deficient. even had the attorney s performance been See Strickland, 466 U.S. at 697. Quarles ineffective maintains assistance that in his agreeing trial with counsel the rendered government that Quarles was eligible for a maximum Guidelines sentence of 150 months pursuant Guidelines. to Section 5G1.2(d) of the Sentencing Section 5G1.2(d) states, in relevant part: If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to 5 the extent necessary to produce a combined sentence equal to the total punishment. United States § 5G1.2(d) (Nov. Sentencing 2001) Commission, ( USSG ). Guidelines Quarles Manual, interprets total punishment to mean the statutory maximum of 10 years for an offense under 18 U.S.C. § 922(g). Quarles interpretation of total punishment is not accordance with prior decisions in the Fourth Circuit. in The Fourth Circuit has explained that 5G1.2(d) applies where the total punishment mandated by the guidelines exceeds the highest statutory maximum. (4th Cir. Chase, 2001) 296 F.3d United States v. White, 238 F.3d 537, 543 (emphasis 247, added); 251 (4th see Cir. also 2002) United States (defining v. total punishment as the point within the guideline range designated by the district court as the appropriate term of imprisonment ). As the Guidelines themselves recognize, this provision was meant to address situations where statutory maximums would hamstring the court from imposing a Guidelines-compliant sentence were the sentences to run concurrently. See USSG § 5G1.2(d), comment. Based on the court s determination of a total offense level of 26 and a criminal history category of VI, the Guidelines called for a 120- to 150-month term of imprisonment. defense counsel Guidelines was sentence correct was 150 in conceding months. 6 that the Furthermore, Thus, maximum Quarles sentence fell below the highest called for by the Guidelines. level of total punishment Because any argument challenging the application of the stacking rule in § 5G1.2(d) would have been futile, counsel did not render ineffective assistance in failing to make it. Cir. 2000) Oken v. Corcoran, 220 F.3d 259, 269 (4th ( [T]rial counsel was not constitutionally ineffective in failing to object . . . because it would have been futile for counsel to have done so. ); Truesdale v. Moore, 142 F.3d 749, 755 (4th Cir. 1998) ( It was not constitutionally ineffective assistance for . . . counsel not to pursue futile claims. ). Quarles also faults his appellate counsel for not appealing the mention of a prior trial wherein Quarles was accused of murder. In particular, Quarles states that a government witness, the brother of the victim in the prior murder trial,4 was permitted to offer highly inflammatory testimony about the murder trial over trial counsel s continued objections. He believes his appellate counsel should have pursued this issue at the Fourth Circuit. 4 The government called the witness, Lacey Rainey, because he placed a 911 call to authorities informing them that he had spotted Quarles walking in Capitol Heights, Maryland and knew that Quarles was wanted on a federal warrant. That phone call led the authorities to find Quarles in possession of a shotgun in May 2001. 7 The selection of which issues to present on appeal is, almost by its very nature, a strategic decision. See Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000) ( [A]ppellate counsel is given significant latitude to develop a strategy that may omit meritorious claims in order to avoid burying issues in a legal jungle. ); Haynes v. United States, 451 F.Supp.2d 713, 722 (D.Md. 2006) ( Limiting the issues to the stronger or strongest ones while strategy. ). winnowing out the weaker is sound appellate Effective assistance of appellate counsel does not require the presentation of all issues on appeal that may have merit, and [the court] must accord counsel the presumption that he decided which issues were most likely to afford relief on appeal. 2008) Lawrence v. Branker, 517 F.3d 700, 709 (4th Cir. (quotation Consequently, marks, while it is brackets, and conceivably citations possible to omitted). bring an ineffective assistance claim premised on an appellate counsel s failure to raise an issue, it will be difficult. Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (quotation marks and brackets omitted). An ineffective assistance claim based on an ignored issue generally will only succeed when ignored issues are clearly stronger than those presented. Lawrence, 517 F.3d at 709. That standard has not been met here. Appellate counsel launched a fervent attack on the court s decision on direct 8 appeal, making at least one argument of such strength that the Fourth Circuit addressed the appeal in Appellate counsel pressed four arguments: a published opinion. (1) the court erred in denying a motion to suppress certain statements Quarles made on May 7, 2001, as police officers did not possess reasonable suspicion justifying an investigate stop; (2) Section 922(g) is an unconstitutional exercise of Congress commerce power; (3) proof that the firearm travelled at some point in interstate commerce is an insufficient nexus with interstate commerce to invoke the statute; and (4) the court should have instructed the jury that it must find that the firearm s possession had to affect Quarles, interstate 330 F.3d commerce at 650 in & some n.2. non-trivial The way. arguments See offered by appellate counsel successfully convinced one judge that the case was a close call. While counsel Id. at 657 (Shedd, J., concurring). raised strong issues on appeal, the overlooked issue noted by Quarles was a decidedly weak basis for appeal. For one, there is no indication that the government introduced evidence objections of his of Quarles trial prior counsel. murder Rather, trial over defendant s the trial counsel herself raised the issue from almost the very beginning of her opening statement: But the most important thing for you to know is that Mr. Quarles was falsely accused of that murder. He was falsely accused of the 9 murder of the brother of the government s key witness in this case. He pled not guilty. . . . And after that jury heard all of the evidence in that case, they found the truth. They found Mr. Quarles not guilty of the murder of Brian Rainey. (10/9/2001 Tr., at 119). Trial counsel then reopened the issue in her cross-examination of Lacey Rainey, the witness Quarles now contends offered impermissible testimony about the murder trial. object (See, e.g., id. at 193-98). when the government about the murder trial. elicited She did not apparently its own brief testimony (See, e.g., id. at 205; 10/10/2001 Tr., at 27). Because trial counsel failed to object to references to the prior murder trial, any claim on appeal would have been reviewed only for plain error. (1993). United States v. Olano, 507 U.S. 725, 732 There is little suggestion of any error, let alone plain error. As the Fourth Circuit said in a similar case: Even if we agreed with [the defendant] that the testimony was inadmissible, [the defendant] invited the error and therefore it provides no basis for reversal. At trial, [the defendant] did not object to any of the statements he now challenges, indeed, most were elicited by his own attorney from a government witness during crossexamination. . . . Under these circumstances, [the defendant] cannot complain of error which he himself has invited. United States v. Neal, 78 F.3d 901, 904 (4th Cir. 1996) (quotation marks omitted); see also Ohler v. United States, 529 10 U.S. 753, 755 (2000) ( Generally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted. ). Accordingly, appellate counsel did not render ineffective assistance in deciding to forego making this likely fruitless argument in favor of making other stronger arguments. See, e.g., Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) ( Appellate counsel cannot be found to be ineffective for failure to raise an issue that lacks merit. (quotation marks omitted)). IV. Conclusion For the foregoing reasons, Quarles motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 will be denied. 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 applicant. A certificate of appealability is a jurisdictional prerequisite to an appeal from the court s earlier order. F.3d 652, 659 (4th Cir. 2007). United States v. Hadden, 475 A certificate of appealability may issue only if the applicant has made a substantial showing of the denial 2253(c)(2). of a constitutional right. 28 U.S.C. § Where the court denies petitioner s motion on its 11 merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find the court s constitutional claims debatable or wrong. assessment of the Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). Upon its review of the record, the court finds that Quarles does not satisfy the above standard. A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 12
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