United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
Petitioner Donell Nettles seeks post-conviction relief under 28 U.S.C. § 2255. On September 3, 2013, Nettles filed a "Motion to Vacate, Set Aside, or Correct Sentence" under 28 U.S.C. § 2255 ("Motion to Vacate, " ECF 54). In particular, Nettles posits seven grounds, including that his counsel was ineffective because he failed to hold an evidentiary hearing on his motions to suppress evidence and to suppress statements. He also contends that on December 11, 2012, he involuntarily entered his guilty plea to the charge of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). ECF 30; see "Plea Agreement" (ECF 57-1 ¶ 1).
The Government filed an opposition (ECF 57), along with several exhibits: a copy of the Plea Agreement (ECF 57-1); a transcript of Nettles's rearraignment ("Rearraignment Transcript, " ECF 57-2); a copy of Nettles's motion to voluntarily dismiss his appeal (ECF 57-3); and a transcript of Nettles's sentencing hearing ("Sentencing Transcript, " ECF 57-4). Nettles timely filed a Reply ("Reply, " ECF 59). The Motion to Vacate is ripe for decision, and no hearing is necessary to resolve it. See Local Rule 105.6. Because the Motion to Vacate and the record conclusively show that Nettles is not entitled to relief on the grounds asserted, I will deny the Motion to Vacate. See 28 U.S.C. § 2255(b); Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
On December 9, 2011, at approximately 10:40 p.m., the Maryland State Police ("MSP") conducted a traffic stop of a Toyota Highlander in Carroll County, Maryland. The vehicle was traveling at 48 miles per hour in a 40 miles per hour zone. Nettles was identified as the driver and the owner of the vehicle. Another person was traveling in the front passenger seat.
MSP requested a drug sniffing dog to scan the vehicle based on the following observations: a strong smell of cologne coming from the vehicle; the vehicle was dirty and cluttered; there were coffee and energy drinks in the vehicle; a container of Febreze air freshener was observed in the vehicle; a box of sandwich baggies was in the glove box; Nettles was overly cooperative and nervous; the passenger refrained from making any eye contact; and Nettles had "odd" travel plans. Nettles was about two hours from his home in Virginia, claimed to be traveling to a co-worker's home for a social gathering, but did not know his destination without checking his GPS device. See "Memorandum in Opposition to Motions to Suppress" (ECF 24 at 4-6).
At approximately 10:54 p.m., a K-9 scan was conducted on the vehicle. The scan resulted in a positive alert on the driver's side door. Nettles then told MSP that in the center console there was a small amount of marijuana, which he had smoked earlier in the evening. Based on this information, MSP searched the vehicle, resulting in the discovery of two loaded firearms bearing obliterated serial numbers.
On July 13, 2012, Nettles, through counsel, filed a "Motion to Suppress Tangible and Derivative Evidence" with respect to MSP's stop and search of his vehicle. ECF 17. He argued that the police lacked the reasonable suspicion or probable cause necessary to extend the traffic stop to include a K-9 scan and, as a result, Nettles's constitutional rights were violated. Id. He also moved to suppress statements he made to law enforcement. ECF 18. The Government responded to Nettles's motion (ECF 24), and Nettles replied (ECF 29).
The suppression motions were scheduled for a hearing on December 11, 2012. ECF 21. However, no motion hearing was held, because Nettles entered into a plea agreement. See ECF 57-1; see also ECF 31 (same). In the plea agreement, dated December 10, 2012 and signed by Nettles on December 11, 2012, Nettles agreed to plead guilty to Count One of the Indictment, charging Possession of a Firearm by a Felon, in violation of 18 U.S.C. § 922(g). The plea was entered pursuant to Fed. R. Crim. P. 11(c)(1)(C) (commonly referred to as a "C plea"). See Plea Agreement ¶ 9. In entering into the Plea Agreement, Nettles stipulated that he knowingly possessed the two firearms recovered from his vehicle, despite having previously been convicted of a crime punishable by more than one year imprisonment. The parties also agreed that a sentence of 30 months' imprisonment was the appropriate disposition. Id. That sentence was below the advisory sentencing guidelines range of 46 to 57 months, based on an offense level of 21 and a criminal history category of III. See Sentencing Transcript at 4.
Notably, the offense level of 21 was based on a three-level deduction for Nettles's acceptance of responsibility and his timely notification of intention to plead guilty. See Plea Agreement ¶ 6(b). If Nettles had litigated the motions, the Government might not have agreed to that three-level deduction. In that event, Nettles would have had an offense level of 24. With his criminal history, which includes a second degree murder conviction in 1994, see ECF 34 at 6-7. Nettles's advisory guidelines range could have been 63 to 78 months. Obviously, a sentence of 30 months is well below the bottom of the advisory guidelines applicable to an offense level of 24 and a criminal history category of III.
The Court conducted a Rule 11 guilty plea proceeding on December 11, 2012. At the rearraignment, Nettles was sworn. Among other things, he acknowledged his waiver of the right to appeal, except as noted above. See ECF 57-2, Rearraignment Transcript at 15-16. Additionally, Nettles was advised by the Court, and he acknowledged that, by virtue of his guilty plea, he waived any challenges and defenses he had previously asserted, including his motion to suppress evidence related to the traffic stop. Id. at 24-25. Nettles also indicated that he was satisfied with the legal representation provided by his attorney. Id. at 5.
Sentencing was held on March 15, 2013. In urging the Court to adopt the recommended sentence of 30 months, the Government stated that the plea agreement was made in "consideration [of] the various aspects of th[e] case and the Fourth Amendment issues" raised in Nettles's motion to suppress. Sentencing Transcript at 6 (ECF 57-4). Similarly, Nettles's attorney said: "I think, in many ways, this is the quintessential compromise, where it was a careful balancing of risks. Both sides believed that they would prevail [at the motion hearing] and both sides were cognizant that they could lose." Id. The Court acknowledged that the case involved "a lot of issues, " there was "risk on both sides, " and the case "could have gone either way." Id. at 8. Accordingly, the Court adopted the terms of the C plea and sentenced Nettles to 30 months in federal prison, consistent with the parties' agreement. See Judgment (ECF 39); Statement of Reasons (ECF 40); Sentencing Transcript (ECF 57-4).
At the conclusion of the sentencing hearing, Nettles was advised by the Court that, to the extent that the sentence did not exceed 30 months, he had waived many of his rights to appeal. But, he was told that he had 14 days to file an appeal if he believed that he had grounds to do so. See Sentencing Transcript at 12.
Seven days later, on March 22, 2013, Nettles sent a letter to his attorney stating that the attorney had broken a promise to visit Nettles during the week of March 18-22. See Motion to Vacate, Ex. C at 11 (ECF 54). Nettles also wrote that he had planned to notify counsel of his intent to appeal during that meeting, and that he would be forced to file his own notice of appeal if counsel did not file the appeal and send a copy to Nettles before the 14-day deadline. Id. On March 27, 2013, defense counsel filed a notice of appeal. ECF 41. Nevertheless, Nettles filed a separate notice of appeal on the same day. ECF 43. Nettles's two notices of appeal resulted in a single direct appeal. See ECF 45.
On March 28, 2013, the Fourth Circuit appointed the Federal Public Defender for the District of Maryland to represent Nettles on appeal. ECF 46. On April 12, 2013, the Clerk for the Fourth Circuit noted that Nettles's attorney had requested transcripts from Nettles's rearraignment and sentencing. ECF 47. Both transcripts were produced on April 17, 2013. ECF 48; ECF 49.
On April 18, 2013, the Fourth Circuit granted the Federal Public Defender's motion to withdraw as Nettles's appellate counsel and appointed new counsel. ECF 51. According to Nettles, on July 7, 2013, his successor attorney suggested that Nettles move voluntarily to dismiss the direct appeal due to Nettles's waiver in the Plea Agreement of his appellate rights and the lack of any appealable grounds. See ECF 59, "Attachment 3" at 19. The new attorney also advised Nettles that he would likely have a greater chance of success in pursuing a 28 U.S.C. § 2255 Motion to Vacate based on Nettles's trial counsel "failing to hold an evidentiary hearing on the motions to suppress [Nettles's] statements and to suppress the evidence, or of any other course of dealing that does not appear on the record that influenced [Nettles's] plea of guilty." Id.
On July 9, 2013, the Fourth Circuit granted Nettles's motion to voluntarily dismiss his appeal pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. ECF 52. The Motion to Vacate followed. Additional facts will be presented in the Discussion.
The core of Nettles's allegations is that he received ineffective assistance of counsel from his trial attorney and that his guilty plea was involuntary due to the actions of defense counsel and the Court.
Pursuant to 28 U.S.C. § 2255(a), a prisoner in federal custody may "move the court which imposed the sentence to vacate, set aside or correct the sentence" if the petitioner shows "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...." Nettles advances seven grounds to support his Motion to Vacate: (1) "Counsel performed deficiently by failing to hold an evidentiary hearing on [the] motion to suppress the evidence and statements"; (2) "Counsel was unconstitutionally ineffective by advising Petitioner to not withdraw his plea knowing there was a meritorious Fourth Amendment challenge"; (3) "Counsel provided unreasonable professional assistance by advising that the plea agreement covers the elements of the charge..."; (4) "Counsel was unconstitutionally ineffective in failing to consult with Petitioner regarding his desire to file a notice of appeal"; (5) the Court failed to give Nettles "real notice' of the nature of the offense and the critical elements of the offense prior to accepting [his] guilty plea"; (6) Nettles's guilty plea "was involuntary because the Court failed to apprise [him] of the nature of the charges to which [he] pleaded guilty"; and (7) the Court failed "to inform [Nettles] [of] the [G]overnment's right, in a prosecution for perjury or false statement, to use against [Nettles] any statement that [he] g[a]ve under oath." Motion to Vacate at 5-7. These grounds are discussed, in turn.
A. Ineffective Assistance of Counsel
A violation of the Sixth Amendment right to effective assistance of counsel is a well-recognized basis for relief under § 2255. See generally Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012); Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010). To successfully challenge a sentence of imprisonment under 28 U.S.C. § 2255 based on a Sixth Amendment claim of ineffective assistance of counsel, a petitioner must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687-88 (1984). See, e.g., Chaidez v. U.S., ___ U.S. ___, 133 S.Ct. 1103, 1107-08 (2013); Lafler, 132 S.Ct. at 1384; United States v. Baker, 719 F.3d 313, 318 (4th Cir. 2013); see also Hill v. Lockhart, 474 U.S. 52, 57 (1985).
First, the petitioner must show that counsel's performance was not "within the range of competence normally demanded of attorneys in criminal cases, " Strickland, 466 U.S. at 687, and was "below an objective standard of reasonableness, " measured by "prevailing professional norms." Id. at 688. "Keenly aware of the difficulties inherent in evaluating counsel's performance, the Supreme Court has admonished that courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Lawrence v. Branker, 517 F.3d 700, 708 (4th Cir. 2008) (quoting Strickland, 446 U.S. at 689).
Second, the petitioner must show that counsel's deficient performance "prejudiced [his] defense." Strickland, 446 U.S. at 687. To satisfy the "prejudice prong, " a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 697; see Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (stating that, under the second prong, the petitioner must prove that the "result of the proceeding was fundamentally unfair or unreliable"). A court may determine whether prejudice has been shown before judging counsel's conduct for deficiencies. Indeed, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed." Strickland, 446 U.S. at 670.
I conclude that Nettles is not entitled to habeas relief based on ineffective assistance of counsel. Nettles was represented by an experienced attorney in the Office of the Federal Public Defender. His claims cannot overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Yarbrough v. Johnson, 520 F.3d 329, 337 (4th Cir. 2008) (quoting Strickland, 446 U.S. at 689). Put another ...