Freeman v. USA-2255, No. 8:2007cv00892 - Document 1 (D. Md. 2012)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/27/2012. (c/m 9/27/2012 eb) (ebs2, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : JOSEPH FREEMAN : v. : Civil Action No. DKC 07-0892 Criminal No. DKC 03-0194 : UNITED STATES OF AMERICA : MEMORANDUM OPINION Presently pending and ready for resolution in this habeas corpus action are numerous motions filed by Petitioner Joseph Freeman: a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 254); a motion to amend and supplement facts to vacate his entire conviction or alternatively [to] grant the pe[ti]tioner a bond motion (ECF No. 260) ( first motion to amend ); a motion to compel an officer of the United States to perform his duty . . . and motion to expand the record (ECF No. 296) ( second motion to amend ); and a notice of Petitioner s state conviction being vacated (ECF No. 306) ( third motion to amend ). The relevant issues have been briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Petitioner s first motion to amend will be granted; his second and third motions to amend will be denied; and his § 2255 motion, as amended, will be denied.1 I. Background By a superseding indictment filed on September 8, 2003, Petitioner Joseph Freeman was charged with participating in a large-scale drug conspiracy. week trial, the jury On June 16, 2004, after a five- found him guilty of conspiracy to distribute five kilograms or more of cocaine and fifty grams or more of cocaine base, in violation of 21 U.S.C. § 846, and four counts of possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). At sentencing, Petitioner was assigned an adjusted offense level of 40 based on the quantity of drugs attributable to him 1 A number of related motions will be summarily denied. Concomitantly with his § 2255 petition, Mr. Freeman filed a motion for release on a personal recognizance bond pending the outcome of this proceeding. (ECF No. 255). That motion will be rendered moot by the instant opinion and accompanying order. Petitioner s motion for enlargement of time to respond to the Government s motion to dismiss (ECF No. 266) is also moot, insofar as the Government never filed a motion to dismiss. Petitioner s motion for leave to amend o[r] supplement pleadings (ECF No. 273) seeks, in effect, the same relief that will be denied on the basis of the motions decided herein. Petitioner s motion for appointment of counsel (ECF No. 274) will be denied because Mr. Freeman has not demonstrated that his petition involves exceptional circumstances. See Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975) ( [I]t is well settled that in civil actions the appointment of counsel should be allowed only in exceptional cases. ). Finally, the documents requested by Petitioner in correspondence dated July 11, 2008 which was docketed as a motion for copy work at the expense of the Government (ECF No. 275) have been provided at various points over the course of the litigation. 2 and the foreseeable use of a firearm by a co-conspirator. He acknowledged two prior felony convictions in the Circuit Court for Prince conviction George s for County, assault Maryland intent to with specifically, a 1992 disable a 1994 and conviction for possession of cocaine with intent to distribute resulting in his designation as a career offender, pursuant to U.S.S.G. § 4B1.1, and placing him in criminal history category VI. Based on these specifications, the sentencing range was from 360 months to life. Petitioner was sentenced to concurrent terms of imprisonment of 360 months to be followed by ten years of supervised release.2 Judgment was entered on December 15, 2004. On appeal, Petitioner argued (1) that his sentence violated the Sixth Amendment under the rule announced in United States v. Booker, 543 permitting U.S. 220 evidence (2005); of his (2) that the co-defendants court erred confessions in and certain hearsay statements; (3) that his trial counsel rendered ineffective assistance; (4) that his convictions for possession with intent to distribute violated the Double Jeopardy Clause of the Fifth Amendment; evidence of his guilt. and (5) that there was insufficient The United States Court of Appeals for the Fourth Circuit declined to review Petitioner s ineffective 2 More specifically, Mr. Freeman was sentenced to ten years of supervised release on the conspiracy count and concurrent eight-year terms on the remaining counts. 3 assistance claim, but affirmed on all other grounds. States v. Freeman, 167 F.App x 953 (4th Cir. 2006). See United The Supreme Court of the United States denied his petition for a writ of certiorari on November 13, 2006. See Freeman v. United States, 549 U.S. 1042 (2006). On April 2, 2007, Petitioner filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (ECF intelligible, No. it 254). appears To to the extent raise the this motion following is grounds: (1) Petitioner was tried and convicted by an unconstitutional Jury Panel, in violation of the law ; (2) [i]t was Fraud Upon The Court for the Government to prosecute a Possession With Intent to Distribute Drugs ; (3) [t]he U.S. Sentencing Guidelines [] infringe[d] upon the petitioner s Fifth Amendment Rights ; (4) [t]his case involve[s] court officials [who] intentionally violated their A.B.A. Canon Codes ; and (5) his trial counsel rendered ineffective assistance. (Id. at 5-6, B ). On June 20, 2007, Petitioner filed his first motion to amend, grounds in to which his he appears § 2255 to petition: request (1) the the addition of two imposition of an additional Supervised Release Term beyond [Petitioner s] maximum guideline range constituted Cruel and Unusual Punishment, unlawful confinement and an Ex Post Facto Clause violation, and 4 (2) the statutory scheme under Title 18 U.S.C. [§] 3553 . . . [impermissibly] allow[s] judge[s] to increase a defendant[ s] punishment. (ECF No. 260, at 2, 5). On July 17, 2007, the Government filed its opposition to Petitioner s § 2255 petition. (ECF No. 261). In addition to filing his § 2255 petition in this court, Petitioner also sought certain relief from the Circuit Court for Prince George s County in connection with his 1994 felony drug conviction. On April 11, 2006, Petitioner filed a pro se, ex parte motion to obtain records and transcripts from the state court proceeding and for show of cause challenge [the] validity of convictions. 11). More than two years later, on to collaterally (ECF No. 297-1, at September 4, 2008, Petitioner filed a motion for a writ of error coram nobis in the Circuit Court, seeking a belated appeal in his 1994 felony drug case. (ECF No. 296-1, at 2). That petition was granted on October 9, 2009, and Petitioner noted an appeal to the Maryland Court of Special Appeals on or about October 30, 2009. (Id. at 4). On June 14, 2010, Petitioner filed his second motion to amend his § 2255 petition, arguing, inter alia, that the record should reflect the newly discovered evidence indicating that Petitioner is no longer a career offender based on the Circuit 5 (ECF No. 296, at 9).3 Court s October 9, 2009 ruling. 29, 2010, the Government filed its response to On June Petitioner s motion, arguing that any claim relating to Petitioner s state court conviction is barred as untimely. (ECF No. 297). In an unpublished opinion issued on June 22, 2011, the Maryland search Court of yielding Special the Appeals cocaine at held issue that in Mr. felony drug case violated the Fourth Amendment. at 10-14). the warrantless Freeman s 1994 (ECF No. 306-1, The charges against Petitioner were nolle prossed on or about December 9, 2011. On February 28, 2012, Petitioner filed his third motion to amend that attaches a copy of the Court of Special Appeals opinion and requests an order that (1) grant[s] his pending 2255 Habeas Corpus Petition ; (2) set[s] a court date for a hearing for re-sentencing; and (3) appoints counsel to represent him. II. (ECF No. 306). Motions to Amend While the Rules Governing Section 2255 Proceedings do not specifically address the procedure for amendments, courts have typically applied Federal Rule of Civil Procedure 15 to the amendment of a § 2255 motion. United States v. Pittman, 209 3 In his motion, Petitioner incorrectly characterized Circuit Court s October 9, 2009 ruling as evidence that state court conviction has been vacated. (ECF No. 296, at As set forth above, that ruling only granted Petitioner right to seek a belated appeal. Mr. Freeman s conviction not vacated until December 9, 2011. 6 the his 9). the was F.3d 314, 317 (4th Cir. 2000). Under Rule 15(a), a party may amend a pleading once as a matter of course at any time within twenty-one days after service of the response; otherwise, amendment is permissible only with the written consent of the opposing party or upon obtaining leave of the court. leave to requires, amend should Fed.R.Civ.P. be freely 15(a)(2), given and Typically, when should be justice denied so only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or amendment would be futile, Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009). Furthermore, any amendment to a § 2255 petition that seeks to add one applicable or more statute of new claims must limitations. also comply Pursuant to with 28 the 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: (1) the date on which conviction becomes final; the judgment of (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 7 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. Here, Petitioner filed his first motion to amend on June 20, 2007 (ECF No. 260), approximately one month prior to the Government s response (ECF No. 261). Thus, he is permitted to add the two new grounds of relief raised therein as a matter of course under Rule 15(a).4 Moreover, because Petitioner filed the first motion to amend within one year of the date when judgment against the Petitioner became final, the newly raised grounds are timely under 28 U.S.C. § 2255(f)(1). By contrast, Petitioner s second and third motions to amend both of which were filed long after the Government filed its response and thus can be granted only if the amendment would not be futile do not fare as well. to add a new claim to At bottom, both motions seek Petitioner s § 2255 petition seeking modification of Mr. Freeman s sentence based on the vacatur of his predicate 1994 state court conviction. 4 Petitioner contends As noted above, Petitioner s new arguments are that: (1) the imposition of an additional Supervised Release Term beyond [Petitioner s] maximum guideline range constituted Cruel and Unusual Punishment, unlawful confinement and an Ex Post Facto Clause violation, and (2) the statutory scheme under Title 18 U.S.C. [§] 3553 . . . [impermissibly] allow[s] judge[s] to increase a defendant[ s] punishment. (ECF No. 260). 8 that his new claim is timely because the vacatur constitutes a new fact that start[ed] a one-year period in which to seek collateral review § 2255(f)(4). of his federal (ECF No. 296, at 9). sentence pursuant to The Government rejoins that Petitioner s new claim is barred pursuant to the United States Supreme Court s decision in Johnson v. United States, 544 U.S. 295 (2005), because Petitioner did not pursue vacatur with the due diligence required by § 2255(f)(4).5 The argument advanced by the Government is persuasive. In Johnson, the Supreme Court confirmed that the vacatur of a state court conviction upon which a federal sentence is based constitutes a matter of fact for purposes of § 2255(f)(4). Johnson, 544 U.S. at 302; cf. Custis v. United States, 511 U.S. 485, 497 (1994) successfully reopening of sentences ).6 (explaining challenges any a federal that state a federal conviction sentence enhanced defendant may by apply the who for state The Johnson Court further held that a petitioner s receipt of the vacatur order is the event that triggers the one- 5 Although it was raised in a brief filed prior to the vacatur of Petitioner s 1994 conviction, the Government makes clear that its due diligence argument applies [r]egardless of the outcome of the belated appeal of his state conviction. (ECF No. 297, at 5). 6 Petitioner does not contend that any of the limitations periods set forth in § 2255(f)(1)-(3) would be applicable to his proposed new claim for modification of his sentence based on the vacatur. (See ECF Nos. 296, 306). 9 year statute of limitations period set forth in § 2255(f)(4). Johnson, 544 U.S. at 307. period, however, the To benefit from the new one-year petitioner must also demonstrate due diligence in seeking the vacatur. Id.; cf. United States v. Williams, 162 (4th Johnson s due F.App'x 254, diligence 257-58 standard to Cir. the evidence exception to the mandate rule). with due diligence begins petitioner s federal case. on the 2006) newly (applying discovered The obligation to act date of judgment in the Johnson, 544 U.S. at 309 (explaining that, as between the date of indictment, the date of judgment, and the date of finality after direct appeal, using the date of judgment as represents the the trigger best for balance the due between minimizing collateral litigation). diligence serving obligation finality and Applying these standards, the Johnson Court held that the petitioner who had waited more than three years after judgment to attack the predicate state conviction and offered no explanation for this delay did not act with due diligence and therefore was precluded from relying on § 2255(f)(4). Here, Mr. Id. at 311. Freeman filed his third motion to amend on February 28, 2012, just shy of three months after the Circuit Court for Prince George s County nolle prossed the charges giving rise to his 1994 state court conviction. Thus, under the first proposed part of Johnson s holding, 10 Petitioner s claim seeking modification of his sentence based on the vacatur would be well within established by Petitioner the acted one-year statute § 2255(f)(4). with the The of limitations inquiry appropriate level becomes of period whether diligence in seeking vacatur in the first instance. Pursuant to Johnson and Williams, the entry of the federal judgment against Petitioner on December 15, 2004, triggered his obligation to pursue vacatur with diligence. As indicated by the transcripts from sentencing, Petitioner was aware that the length of his sentence was based, in part, on his 1994 state court conviction. Thus, the significance of inaction (i.e., the significance of not challenging his state court conviction) became clear no later than this date. cf. Williams, 162 F.App x at 258 Johnson, 544 U.S. at 309; ( The [Johnson] Court determined that it was the possibility of an enhanced federal sentence that would cause a defendant to recognize the need to challenge the validity of his prior state convictions. ).7 Yet Petitioner did not file his motion for a writ of error coram nobis seeking a belated appeal of the state court conviction until September 4, 2008, a delay of three years and nine months. As the Government points out, 7 this is far longer than the Indeed, as the Government points out, Petitioner likely became aware of the role that his 1994 state court conviction would play in his sentence as early as May 11, 2004, when he received notice that the Government intended to seek an enhanced penalty based on the conviction. (ECF No. 297, at 7). 11 twenty-one month period the Johnson constitute an unreasonabl[e] delay. Court observed would Johnson, 544 U.S. at 311 (explaining that even if the period of delay was shortened from three-plus years to 21 months, petitioner would still have delayed unreasonably ); see also In re Milton, 155 F.App x 614, 617 (3d Cir. 2005) (petitioner did not display due diligence because [n]othing further occurred in th[e state court] case until counsel was appointed on October 3, 1994 - 22 months after [petitioner s] federal sentence was imposed ); Hamilton v. United States, Nos. CV408-138, CR405-121, 2008 WL 4533692, at *2 (S.D.Ga. Oct. 6, 2008) ( The Court finds that [petitioner s] 21month delay in filing his state habeas petition was unreasonable. ). In a footnote, the facts underlying the Johnson challenge Court noted that where the to the state-court conviction might themselves not be discoverable through the exercise of due diligence until after the date of the federal judgment, the due diligence obligation could be Johnson, 544 U.S. at 310 n. 8. here as Plaintiff there is pursued nothing vacatur triggered at a later point. This exception is not applicable in the based on record demonstrating information that did that not become discoverable until some point after the federal judgment. According to the transcript from the hearing on the motion for a writ of error coram nobis, Petitioner sought a belated appeal of 12 his 1994 conviction based on his state court trial counsel s failure to note an appeal, despite Petitioner s express request for him to do so. (See ECF No. 297-2, at 3). Nothing in the record indicates that Petitioner mistakenly believed that his state court counsel had noted an appeal. harbor such a mistaken belief, Even if Petitioner did however, his state court attorney s error was certainly discoverable as of the date of the federal judgment. Likewise, according to the opinion of the Maryland Court of Special Appeals that led to vacatur (ECF No. 306-1), Petitioner s substantive challenge to the 1994 conviction did not rely on any facts that were undiscoverable at the time of the federal judgment. Instead, Petitioner argued that the trial court committed legal error by (1) upholding the constitutionality of the inventory search yielding the cocaine, and (2) allowing the cocaine to be introduced into evidence despite the prosecution s failure to establish proper chain of custody. (Id. at 1). Hence, because Petitioner s challenge to the state court conviction did not depend on facts that were undiscoverable at the time of the federal judgment, the exception contemplated by Johnson cannot be relied on here. As the Government concedes, Petitioner did file a pro se motion to obtain records and transcripts relating to his state court months proceedings after on entry April of 11, judgment 13 2006, approximately against him in seventeen the federal proceedings. the state (ECF No. 297, at 7; ECF No. 297-1, at 11). court docket, that motion expressly Per referenced challenging the validity of the state court convictions. (Id.) After the state court responded by requesting payment for the documents, Petitioner filed a second motion on July 6, 2006, seeking to indigence. be excused from paying (ECF No. 297-1, at 12). the costs due to his Petitioner did not file his motion for a writ of error coram nobis until September 4, 2008, twenty-six months later. Similar defendant facts received were his presented federal in Williams, sentence in August where the 1999 but waited until April 2003 to seek modification of his predicate state court convictions, 162 F.App x at 260.8 a period of three-and-a-half years. The Fourth Circuit noted that the defendant 8 Although Williams did not involve a § 2255 petition, the Fourth Circuit s holding is relevant to whether Mr. Freeman diligently sought vacatur here. In Williams, after the defendant s second appeal, the Fourth Circuit vacated the sentence imposed by the trial court and remanded with explicit and specific instructions regarding re-sentencing, including how the defendant s prior state court drug convictions should affect the sentencing range. 162 F.App x at 255. Just prior to resentencing in the district court, the defendant sought and received an order from the state court retroactively modifying his predicate convictions, which were changed from convictions for the sale of crack cocaine to convictions for the possession of crack cocaine. Id. In determining whether the district court erred in refusing to deviate from the Fourth Circuit s remand instructions based on the modified convictions, the Williams court considered the applicability of the new evidence exception to the mandate rule and held that Johnson 14 took some limited action in connection with challenging his state convictions in early 2000 approximately five months after entry of the federal judgment by requesting transcripts from the earlier proceedings. See id. After his requests were denied in April 2000, the petitioner s efforts then came to a halt, to finally be revived in April 2003, three years later. Id. The Fourth Circuit concluded that requesting a transcript (which, so far as the record reveals, was not necessary to obtaining the modification of the state convictions) and then abandoning the effort for three years does not amount to the exercise of due diligence. Id.; see also In re Milton, 155 F.App x at 617 ( Although a request for a transcript may be a preliminary step toward challenging a conviction, the request by itself does not show due diligence. ). Likewise here, it cannot be said that Petitioner s efforts to obtain the state court records amounts to the due diligence required by § 2255(f)(4) and Johnson. Based on the present record, the state court documents requested were not necessary for Petitioner to obtain either the belated appeal conviction or the ultimate vacatur of the conviction. of the Indeed, the transcript from the hearing on the motion for a writ of error coram nobis makes clear that the Circuit Court granted the was instructive because, like § 2255(f)(4), that exception requires the exercise of due diligence. Id. at 256-57. 15 writ based solely on Petitioner s representation which was not corroborated by anything in the state court docket that his trial counsel ignored his request to pursue an appeal. (See ECF No. 297-2, at 4-5). Likewise, the Maryland Court of Special Appeals cocaine-yielding declared the unconstitutional based on its inventory search interpretation of a to be local ordinance that was not cited by either party in the proceedings below or on appeal. (See ECF No. 306-1). Moreover, Petitioner waited seventeen months after sentencing to seek the records, far longer than the five-month period between the federal judgment and the requests for transcripts at issue in Williams. Finally, as in Williams, Petitioner s efforts to challenge his state court conviction came to a halt after July 2006, as he waited an additional 26 months to file his motion for a writ of error coram nobis. Of course, in evaluating due diligence, the individual circumstances of the petitioner should be considered, including the practical realities of the petitioner s confinement. United States v. Longshore, 644 F.Supp.2d 658, 662 (D.Md. 2009) (citing Jones v. United States, 20 F.App x 520, 523 (7th Cir. 2001)). Importantly, however, it is the Petitioner s burden to demonstrate due diligence. McKinnon v. United States, Civ. No. CCB 12 179, Crim. No. CCB 08 049, 2012 WL 2564723, at *2 (D.Md. June 29, 2012). Here, Petitioner never directly responded to 16 the Government s arguments regarding due diligence and never provided any explanation of his delay in seeking vacatur.9 That Petitioner is proceeding pro se is not sufficient, in and of itself, to excuse his lack of diligence. Johnson, 544 U.S. at 311 alone (rejecting pro se representation or procedural ignorance as an excuse for prolonged inattention to challenging predicate state court convictions); McKinnon, 2012 WL 2564723, at *2 (the petitioner s lack of familiarity with the law and poor advice from other inmates was insufficient to establish due diligence under § 2255(f)(4)). Based on the binding precedent set forth in Johnson and Williams, Petitioner s unexplained delay in seeking to overturn the 1994 state court conviction cannot be deemed reasonable, precluding Petitioner s reliance on § 2255(f)(4).10 Hence, 9 In a handwritten affidavit filed with his original § 2255 motion, Petitioner avers that he told [his federal court trial counsel] to challenge his state conviction before we went to [] federal trial and that his federal trial counsel responded to this request by stating that he needed more money. (ECF No. 254). Even liberally construed, this statement does not offer any explanation that would excuse Petitioner s lack of diligence because it does not give rise to an inference that Petitioner waited to seek vacatur on his own because of a mistaken belief that his federal trial counsel was seeking such relief on his behalf. To the contrary, the affidavit establishes that Petitioner knew his federal trial counsel would not challenge the state court conviction absent additional payment. 10 Although Petitioner does not explicitly argue that equitable tolling should apply to his proposed new claim, such an argument also would be futile. The Supreme Court has held that a petitioner is entitled to equitable tolling only if he 17 Petitioner s second and third motions to amend will be denied because the proposed new claim relating to the vacatur of his predicate state court conviction would not be timely. III. Motion to Vacate A. Standard of Review Title 28, § 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, or is otherwise subject to collateral attack[.] § 2255(a). 28 U.S.C. A pro se petitioner, such as Mr. Freeman, is, of course, entitled to have his arguments reviewed with appropriate consideration. Cir. 1978). files and See Gordon v. Leeke, 574 F.2d 1147, 1151-52 (4th Where, however, a § 2255 petition, along with the records of the case, conclusively shows that the petitioner is not entitled to relief, a hearing on the motion is shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, U.S. , 130 S.Ct. 2549, 2562 (2010) (internal quotations omitted) (emphasis added); see also United States v. Prescott, 221 F.3d 686, 688 (4th Cir. 2000) (equitable tolling should be sparingly granted ). As explained above, Petitioner has not demonstrated the diligent pursuit of his rights in connection with challenging his state court conviction and therefore is not entitled to equitable tolling. 18 unnecessary summarily. and the claims raised therein may be dismissed See 28 U.S.C. § 2255(b). B. Analysis The grounds raised in Petitioner s § 2255 motion as supplemented by the first motion to amend are without merit. As to most of these claims, Mr. Freeman does little more than broadly assert vague allegations of error e.g., petitioner was tried and convicted by an unconstitutional Jury Panel, in violation of the law which he then supports with wholly inapposite legal principles e.g., that the above error was a violation of the Separation of Power doctrine for a trial judge to delegate his or her Judicial Power to 12 citizens on a Jury Panel, to make the final resolution . . . on petitioner s guilty verdict, without causing a Miscarriage of Justice. (ECF No. 254, at 5). Deciphering the meaning of such arguments is, at best, guesswork. these claims generally fall into one Nevertheless, all of of two categories: (1) those that are procedurally barred by virtue of the fact that they were either not raised or previously decided on direct appeal, and (2) bald allegations of ineffective assistance of trial counsel. 1. Procedural Default The ordinary rule is that an error can be attacked on collateral review only if first challenged on direct review. 19 United States v. Harris, 183 F.3d 313, 317 (4th Cir. 1999); see also United States v. Sanders, 247 F.3d 139, 144 (4th Cir. 2001) ( [h]abeas review is an extraordinary remedy and will not be allowed to do service for an appeal ) (internal quotation marks and citation defaulted a omitted). Where constitutional a claim petitioner has procedurally by to raise failing it on direct appeal, it may be raised for the first time in a § 2255 motion only upon a showing of either cause and actual prejudice resulting from the errors of which he complains, or a demonstration that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack. United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999). A showing of cause for a procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective Mikalajunas, 186 F.3d at 493. assistance of counsel. To establish actual prejudice, the petitioner must show that the error worked to his actual and substantial disadvantage, possibility of prejudice. (1986). would than merely creating a Murray v. Carrier, 477 U.S. 478, 494 A petitioner demonstrates that a miscarriage of justice result defaulted rather if claim the by court showing does not actual consider innocence a procedurally by clear and convincing evidence in other words, actual factual innocence 20 of the offense of convictions, i.e., that petitioner did not commit the crime of which he was convicted[.] Mikalajunas, 186 F.3d at 494. Here, Petitioner was required to raise the following claims on direct allegedly appeal, if at all: unconstitutional ; (1) (2) that that the it jury was panel fraud on was the court for the government to prosecute [him for] possession with intent to distribute drugs because the jury could not determine his mental intent to distribute drugs; (3) that the sentencing guidelines infringe[d] upon [his] Fifth Amendment [r]ights ; (4) that court officials intentionally violated ethical principles because the court was swayed by bad provisions of the law ; (5) that the imposition of concurrent terms of supervised release constituted Cruel and Unusual Punishment, unlawful confinement and an Ex Post Facto Clause violation ; and (6) that the statutory scheme under Title 18 U.S.C. [§] 3553 . . . [impermissibly] allow[s] defendant[ s] punishment. judge[s] to increase a To the extent that these claims were not raised on direct appeal, Petitioner bears the burden of showing either cause and actual prejudice resulting from the alleged error, or that he is actually innocent of the crimes for which he stands convicted. He had made no such showing here. It appears, moreover, that at least one of these issues was addressed by the Fourth Circuit. 21 On appeal, Petitioner challenged the the sufficiency of the evidence, claiming there was no tangible evidence linking him to the charges and the witnesses against him were not credible. at 954. Freeman, 167 F.App x The appellate court determined that this argument was without merit, specifically finding that there was sufficient evidence to distribute at establish least Freeman 500 grams possessed of cocaine with on intent four to separate occasions as a result of evidence of his trips to California. Id. at 955. Petitioner s second ground for relief in the instant motion may be read as a challenge to the sufficiency of evidence of his intent to distribute cocaine. To the extent that this argument was addressed on direct appeal, it is not cognizable in his § 2255 motion. Johnson v. United States, No[s]. Civ. PJM-08-2623, Crim. PJM 02-0178, 2010 WL 2573212, at *2 (D.Md. June 22, 2010) ( petitioner may not, through a habeas petition, relitigate an issue previously rejected on direct appeal ) (citing Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976)). In any event, each of the six grounds set forth above has been procedurally defaulted. Crim. No. 5:05-CR-00019, See United States v. Konsavich, Civ. No. 5:08-CV-80100, 2009 WL 1759555, at *10 (W.D.Va. June 19, 2009) ( [C]laims [that] were either not raised on direct appeal or raised and decided by the Court of Appeals . . . are procedurally defaulted. ). 22 Because Petitioner fails to show either actual innocence or cause and prejudice, the merits of these grounds will not be reached. 2. The Ineffective Assistance of Counsel sum and substance of Petitioner s ineffective assistance claims consists of what appears to be an excerpt from an unrelated motion setting forth the relevant legal standard and the following six allegations: [1]. Trial counsel the indictment[;] [] failed to [2]. Trial counsel [] failed to file adequate pretrial motions[;] challenge properly [3]. Trial counsel [] failed to challenge the Constitutionality of the U.S. Sentencing Guideline[s], swayed judge s decision to violate the Double Jeopardy Clause[;] [4]. Trial counsel [] failed to object to the court imposing a consecutive sentence of Supervised Release Term[;] [5]. Trial counsel [] failed to argue[] the unconstitutionality of the Grand Jury and Jury Panel, as well as a tainted indictment[;] [6]. Trial counsel [] engage[d] in[] a Fraud Upon The Court by allowing the Government to expose the defendant to a miscarriage of justice. (ECF No. 254, at B ). These claims are governed by the well-settled standard adopted by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Pursuant to Strickland, the petitioner must 23 show both (1) that the performance of his attorneys fell below an objective standard of reasonableness and (2) that he suffered actual prejudice. demonstrate See actual Strickland, prejudice, he 466 U.S. must show at a 687. To reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Id. at 694. In applying Strickland, a strong presumption exists that counsel s conduct falls within a wide range of reasonably professional conduct, and courts must be highly deferential in scrutinizing counsel s performance. Thompson, 949 F.2d 1354, 1363 See id. at 688-89; Bunch v. (4th Cir. 1991). The reasonableness of attorney conduct must be judged as of the time their actions after the fact. occurred, not the conduct s consequences 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 would have resulted deficient. even had the attorney s performance been See Strickland, 466 U.S. at 697. As to the first allegation, Petitioner has not suggested the manner indictment. in which Even his if counsel Mr. should Freeman have could challenged show the deficient performance, he has made no showing of prejudice, nor could he under the circumstances of this case. 24 See United States v. Mechanik, 475 U.S. 66, 73 (1986) ( [T]he petit jury s verdict rendered harmless any conceivable error in the charging decision that might have flowed from the violation. ); see also White v. United States, Civ. No. WDQ-06-2875, Crim. No. WDQ-03-0375, 2007 WL 2461051, at *5 (D.Md. Aug. 24, 2007) ( Any error in [the petitioner s] grand jury proceedings was rendered harmless by the trial jury s determination of his guilt. (citing Mechanik)). Similarly, Petitioner has with to identified not respect any counsel should have filed. a reasonable the second pretrial allegation, motions that his Nor has he alleged, much less shown, probability, that but for counsel s unprofessional errors, the result of the proceeding would have been different. Petitioner s rendered Strickland, 466 U.S. at 694. third ineffective constitutionality allegation assistance of the by i.e., failing sentencing that to his counsel challenge guidelines, the thereby resulting in a Double Jeopardy violation appears to relate to a claim Circuit. specifically considered and rejected by the Fourth Because this claim is meritless, his trial counsel s representation could not have been constitutionally deficient for failing to raise it. See Baker v. Corcoran, 220 F.3d 276, 293 n. 15 (4th Cir. 2000). 25 The fourth ground, that trial counsel failed to object to the imposition of consecutive terms of supervised release, is belied by the judgment of Petitioner was sentenced to conviction, which reflects concurrent terms of that supervised release. Petitioner counsel grand has should or have petit assistance. not identified challenged juries, Thus, his he has the fifth not the basis upon which constitutionality of allegation of shown deficiency any his the ineffective in performance or prejudice resulting therefrom. Finally, his sixth allegation that his counsel somehow engaged in fraud upon the court by allowing the Government to expose the defendant to a miscarriage of justice is similarly undeveloped and finds no support in the record. IV. Conclusion For the foregoing reasons, Petitioner s first motion to amend will be granted; his second and third motions to amend will be denied; and his motion to vacate, set aside, or correct his sentence (as amended) 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 26 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 merits, a petitioner satisfies this standard by demonstrating that reasonable jurists would find the court s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 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 quotation marks omitted). Petitioner does not satisfy the above standard, certificate of appealability will not issue. A separate order will follow. _______/s/__________________ DEBORAH K. CHASANOW United States District Judge 27 and a
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