JAMES K. LARBI
UNITED STATES OF AMERICA UNITED STATES OF AMERICA
JAMES K. LARBI Criminal No. RDB-05-0088
RICHARD D. BENNETT, District Judge.
The pro se petitioner James K. Larbi has filed a renewed Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 137). Petitioner challenges his sentence on grounds that his attorney rendered ineffective assistance of counsel, in violation of his rights under the Sixth Amendment. In his Motion, Petitioner claims that counsel should have argued for a third-level reduction of his criminal offense level, under section 3E1.1(b) of the Federal Sentencing Guidelines, and that counsel did not properly apprise him of the possibility of deportation if he was found guilty. Upon reviewing Petitioner's Motion and the Government's opposition thereto, this Court finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). Because Petitioner has not demonstrated that counsel provided ineffective assistance, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 137) is DENIED. Petitioner's Motion Seeking a Ruling (ECF No. 145) is rendered MOOT by this decision.
On June 12, 2009, petitioner James K. Larbi ("Petitioner") pled guilty to one count of conspiracy to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846. See Plea Agreement, ECF No. 69. On September 17, 2009, this Court sentenced Petitioner to a prison term of eighty-seven months and a five-year period of supervised release. Judgment, ECF No. 78.
On February 16, 2005, Drug Enforcement Administration agents in Baltimore observed Petitioner meeting with Payton Green ("Green"), a known large-scale heroin trafficker. See Gov.'s Resp. to Pet'r's Original Mot. 1, ECF No. 113. The agents noted that Petitioner was carrying a large backpack during this meeting, and that Petitioner and Green drove toward Penn Station in Baltimore. Id. Based on these observations, the agents suspected that both men were engaged in narcotics trafficking and apprehended them. Id. The agents found over six kilograms of heroin in Petitioner's backpack. Id.
On March 2, 2005, Petitioner and Green were indicted by a federal grand jury on one count of possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 841, and conspiracy to distribute and to possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846. Indictment, ECF No. 13. On March 11, 2005, Petitioner entered a plea of not guilty and was released on conditions of pretrial supervision. See Pet'r's Mot. 1, ECF No. 137. Petitioner then fled to his home country of Ghana. See Gov.'s Resp. to Pet'r's Original Mot. 2. Ghanaian officials eventually located Petitioner and extradited him to the United States. Id. On March 23, 2009, Petitioner made his first appearance before this Court following his flight to Ghana. Id.
On June 12, 2009, Petitioner pled guilty to one count of conspiracy to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846. See Plea Agreement. This Court sentenced Petitioner to a term of eighty-seven months on September 4, 2009. In calculating Petitioner's sentence, this Court granted the Government's motion for a two-level reduction in Petitioner's criminal offense level, pursuant to section 3E1.1(a) of the Federal Sentencing Guidelines.
On August 19, 2010, Petitioner filed a motion to vacate his sentence, made pursuant to 28 U.S.C. § 2255, in which he claimed he received ineffective assistance of counsel for eight reasons. See Pet'r's Original Mot. to Vacate. In his reply brief, Petitioner also asserted that counsel ignored his request to file an appeal. Pet'r's Reply for Original Mot. to Vacate 3-4, ECF No. 116. This Court ordered an amended judgment from which Petitioner could file an appeal and gave leave for Petitioner to file his ineffective assistance of counsel claims under a renewed motion to vacate following the disposition of his appeal. See Order Dismissing Motion to Vacate, ECF No. 118. On appeal, Petitioner argued that his counsel rendered ineffective assistance and that Petitioner did not make a knowing and voluntary guilty plea. See United States v. Larbi, 447 F.Appx. 519 (4th Cir. 2011). On September 29, 2011, the United States Court of Appeals for the Fourth Circuit denied Petitioner's claim as to the validity of his guilty plea and decided not to consider Petitioner's ineffective assistance of counsel claim because the record did not contain conclusive evidence of ineffective assistance. See id.
On April 27, 2012, Petitioner filed the pending Renewed Motion to Vacate. See Pet'r's Mot., ECF No. 137. In his Motion, Petitioner argues that trial counsel provided ineffective assistance for two reasons. First, Petitioner claims that trial counsel should have argued for a third-level reduction of his criminal offense level for entering a timely guilty plea, pursuant to section 3E1.1(b) of the Federal Sentencing Guidelines. See id. at 1. Second, Petitioner asserts that counsel failed to discuss the possibility of Petitioner's deportation if he were found guilty by this Court. See id.
Upon review of Petitioner's Motion to Vacate, the Government's Response, and Petitioner's Reply, this Court finds that Petitioner fails to show that counsel provided ineffective assistance. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 137) is therefore DENIED.
STANDARD OF REVIEW
Documents filed pro se are "liberally construed" and are "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). In order to establish a claim for ineffective assistance of counsel, a petitioner must prove both elements of the test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 671 (1984). First, a petitioner must show that his counsel's performance was so deficient as to fall below an "objective standard of reasonableness." Id. at 688. In assessing whether counsel's performance was unconstitutionally deficient, courts adopt a "strong presumption" that a counsel's actions fall within the "wide range of reasonable professional assistance." Id. at 689. Second, a petitioner must show that his counsel's performance was so prejudicial as to "deprive the defendant of a fair trial." Id. at 687. In order to establish this level of prejudice, the petitioner must demonstrate that there is a "reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different." Id. at 694. Satisfying either of the two parts of the test alone is not sufficient; rather, the petitioner must meet both prongs of the Strickland test in order to be entitled to relief. See id. at 687.
In his Motion to Vacate, Petitioner asserts two claims of ineffective assistance of trial counsel. First, Petitioner argues that trial counsel should have pursued an additional reduction of Petitioner's criminal offense level under section 3E1.1(b) for pleading guilty in a timely manner. See Pet'r's Mot. 3-11. Second, Petitioner avers that trial counsel never informed Petitioner of the possibility of deportation if he were found guilty. See ...