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Bass v. United States

United States District Court, Fourth Circuit

June 11, 2013

KENNETH BASS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

On October 9, 2012, the pro se petitioner Kenneth Bass ("Petitioner") filed a Motion to Vacate Conviction and/or to Correct an Illegal Sentence pursuant to 28 U.S.C. § 2255. ECF No. 90. In his Motion, Petitioner brings nine claims, each asserting that his counsel rendered ineffective assistance. This Court has reviewed the Motion, the Government's Opposition thereto (ECF No. 98), and Petitioner's Reply (ECF No. 105), and finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons stated below, Petitioner's Motion to Vacate Conviction and/or to Correct an Illegal Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 90) is DENIED.

BACKGROUND

On January 13, 2009, Petitioner pled guilty to Counts One and Three of the Indictment. ECF No. 1. Count One charged him with conspiracy to distribute and possess five hundred grams or more of cocaine, and fifty grams or more of cocaine base, in violation of 21 U.S.C. § 846. Count Three charged him with possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c). Petitioner also agreed to a statement of facts describing the circumstances surrounding both counts. Plea Agreement, ECF No. 28.

The facts of this case are taken from the plea agreement entered as Government Exhibit No. 1 on January 13, 2009. Id. During April and May 2008, law enforcement officers asked a cooperating source to hold and record a series of phone conversations with Garry White Sr. ("White"). Id. at 4. From these recordings, the officers gathered information about an illegal conspiracy to distribute and possess with intent to distribute fifty grams or more of a mixture or substance containing a detectable amount of cocaine base. Id. The agreed facts underlying the conspiracy are as follows:

After May 8, 2008 and prior to June 9, 2008, Petitioner and White agreed to provide one kilogram of narcotics (half cocaine and half cocaine base) to a third party. Id. On June 9, 2008, Petitioner made plans to meet White and deliever the narcotics to the third party in the Hilton Inn parking lot at 1726 Reisterstown Road in Pikesville, Maryland. Id.

Before the transaction occurred, Petitioner informed White that, as some of the cocaine had already been sold, he only had 250 grams of cocaine available to sell. Id. Petitioner and White agreed to sell the remaining 250 grams. Id. Petitioner and White also agreed to show the third party the cocaine in powder form and then, upon the third party's inspection, cook the 250 grams into cocaine base. Id.

In June 9, 2008, law enforcement officers waited in the Hilton Inn parking lot to conduct surveillance. Id. When Petitioner arrived to conduct the narcotics transaction, the officers arrested him. Id. The officers also seized a.45 caliber High Point pistol from Petitioner's waist area and 250 grams of cocaine from the 2003 Silver Honda Odyssey Minivan which Petitioner had been driving. Id.

On October 30, 2008, Petitioner was indicted on four counts. Indictment, ECF No. 1. The four offences included: conspiracy to distribute and possess five hundred grams or more of cocaine and fifty grams or more of cocaine base, in violation of 21 U.S.C. § 846 (Count One); possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841 (Count Two); use of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Count Three); and being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g) (Count Four). On January 13, 2009, Petitioner pled guilty to Counts One and Three of the Indictment. Plea Agreement, ECF No. 28. On March 27, 2009, this Court entered judgment against Petitioner. See Order, ECF No. 42. Petitioner was sentenced to 135 months on Count One and sixty months, to be served consecutively, as to Count Three. Petitioner also received five years of supervised relase and a special assessment of $200.[1]

On March 29, 2010, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No. 46. Petitioner alleged, among other arguments, that counsel failed to consult with him about an appeal. On February 1, 2012, this Court granted Petitioner an amended judgment from which to file an appeal, dismissing the remaining claims of his petition without prejudice. See Order, ECF No. 64. On September 20, 2012, the United States Court of Appeals for the Fourth Circuit denied Petitioner's appeal and affirmed his conviction. See J. of U.S. Court of Appeals, ECF No. 89.

On October 9, 2012, Petitioner filed the instant Motion to Vacate. ECF No. 90. In this Motion, Petitioner raises nine claims, each asserting that he received ineffective assistance of counsel. Four of Petitioner's claims address the validity of the plea agreement. Petitioner's other five claims implicate his Motion to Suppress. For the reasons stated below, Petitioner's Motion to Vacate Conviction and/or to Correct an Illegal Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 90) is DENIED. In addition, the Government has responded to Petitioner's Motion to Vacate, rendering Petitioner's Motion to Compel (ECF No. 99) moot.[2] Accordingly, Petitioner's Motion to Compel (ECF No. 99) is DENIED.

STANDARD OF REVIEW

This Court recognizes that Peitioner is pro se and has accorded his pleadings liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). To state a claim of ineffective assistance of counsel in violation of the Sixth Amendment, a defendant must satisfy both prongs of the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 671 (1984). See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). The first, or "performance" prong, of the test requires a showing that defense counsel's representation was deficient and fell below an "objective standard of reasonableness." Strickland, 466 U.S. at 688. In making this determination, courts observe a strong presumption that counsel's actions fell within the "wide range of reasonable professional assistance." Id. at 688-89. The United States Court of Appeals for the Fourth Circuit has previously noted that "[t]he defendant bears the burden of proving the first prong under the Strickland test, " and unless this burden is met, "a reviewing court does not need to consider the second prong." Fields v. Att'y Gen., 956 F.2d 1290, 1297 (4th Cir. 1992).

The second, or "prejudice" prong, requires that defendant demonstrate that his counsel's errors deprived him of a fair trial. Id. at 687. The Fourth Circuit has explained that the mere possibility of a different trial result does not satisfy the burden placed on the defendant. See Hoots v. Allsbrook, 785 F.2d 1214, 1220 (1986). To establish this level of prejudice, the defendant 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. Furthermore, Petitioner faces a heightened burden when he or she ...


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