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Olivis v. United States

United States District Court, D. Maryland, Northern Division

April 17, 2014

RAY OLIVIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. WDQ-09-0183.

MEMORANDUM OPINION

WILLIAM D. QUARLES, Jr., District Judge.

Ray Olivis pled guilty to racketeering conspiracy and was sentenced to 132 months imprisonment. ECF No. 562. Pending are Olivis's pro se motions to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, ECF No. 597, and for production of documents, ECF No. 598. No hearing is necessary. See Rule 8 of the Rules Governing § 2255 Proceedings. For the following reasons, the motions will be denied.

I. Background

On April 8, 2009, Olivis and 21 other defendants were indicted on federal drug trafficking charges for smuggling contraband into Maryland prisons. ECF No. 1. The indictment alleged that the defendants were members or associates of the "Black Guerilla Family" ("BGF"), a gang that operates, inter alia, in Baltimore and Maryland prisons. See id. at 1-4; ECF No. 256 at 2 (superseding indictment). Also on April 8, 2009, alleged BGF members Calvin Robinson and 11 other defendants were separately indicted on related drug trafficking charges. See ECF No. 411 at 3-4.[1] Robinson retained Roland Walker, Esquire, to represent him, and he pled guilty on February 5, 2010. See id. at 3-5.[2]

On June 5, 2009, Michael Montemarano, Esquire, was appointed to defend Olivis. ECF No. 126. On June 23, 2010, the government filed a superseding indictment charging Olivis with: (1) conspiracy to participate in racketeering activity, in violation of 18 U.S.C. § 1961 (count one); (2) conspiracy to distribute and possession with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 846 (count two); and (3) money laundering, in violation of 18 U.S.C. § 1956. ECF No. 256 at 6-7, 22-24. On October 28, 2010, Walker and his associate Jason Silverstein, Esquire, entered appearances as retained counsel for Olivis. ECF Nos. 325-26.

On November 19, 2010, the government moved to disqualify Walker and Silverstein, and Olivis opposed the motion. ECF Nos. 336, 338. The government argued that, because Walker had previously represented Robinson - a BGF member who was acquainted with Olivis - on similar charges, there were actual and potential conflicts of interest in Walker's and Silverstein's representation of Olivis. See ECF Nos. 336 at 1-4, 7, 411 at 5-7. On December 3, 2010 and January 18, 2011, Magistrate Judge Paul W. Grimm held hearings on the motion to disqualify and heard argument from the government, Walker and Silverstein, and Olivis. See ECF Nos. 411, 422. At the January hearing, Olivis stated that Montemarano had "done a wonderful job for [him] up to now, " but he nonetheless preferred to be represented by Walker. See ECF No. 411 at 27.

Also at the January hearing, Judge Grimm found that, although there was no actual conflict of interest in Walker's representation of Olivis, a potential conflict of interest existed because of the number of defendants in the related cases, the complexity of the charged conspiracies, and Robinson's and Olivis's acquaintance. See id. at 31-32, 40-41. Because of this potential conflict of interest, Judge Grimm granted the government's motion to disqualify. See id. at 41.

On January 25, 2011, Olivis moved to reconsider Judge Grimm's ruling. ECF No. 391. Before the Court ruled on the motion, however, Montemarano negotiated a "C" plea[3] agreement for Olivis with his consent.[4] See ECF Nos. 597-1 (2255 petition), 608-4 at 8 (signed plea agreement). Under that agreement, the parties agreed that 132 months was the appropriate sentence for Olivis. ECF No. 608-4 at 5. On April 27, 2011, Olivis was rearraigned and pled guilty to count one of the superseding indictment. ECF No. 452.

At the rearraignment, the Court explained the charges against Olivis, the rights he was relinquishing by pleading guilty, and the likely penalties he faced because of his plea.[5] See ECF No. 608-5 at 3-4, 8-11 (transcript of rearraignment). Olivis swore under oath that he understood the Court's statements. See id. Olivis also testified that he was satisfied with Montemarano's services and that Montemarano had not done anything Olivis had told him not to do or refused to do anything Olivis had asked. Id. at 5-6. He swore that he had read the plea agreement, discussed it with Montemarano, agreed to it, and signed it. Id. at 7. He confirmed that no one had threatened or forced him to plead guilty, and he was pleading guilty of his own free will. Id. at 8, 16. Finally, Olivis testified that he was pleading guilty because he was guilty of the charged crime as described in the plea agreement. Id. at 11-16.

On August 4, 2011, the United States Probation office completed a pre-sentence report ("PSR"). The report concluded that Olivis's offense level was 32, he was eligible for a downward adjustment of three levels to 29 for acceptance of responsibility, and his criminal history category was VI. PSR at 7-8, 15 (sealed). He was a career offender, because of two prior felony convictions for possession with intent to distribute heroin and robbery. See PSR at 15. The PSR calculated an advisory Sentencing Guidelines range of 151 to 188 months imprisonment. PSR.

On September 14, 2011, the Court granted Montemarano's motion to withdraw because of a scheduling conflict. See ECF Nos. 538, 540. The same day, Mirriam Seddiq, Esquire, was appointed to represent Olivis. ECF No. 539. On October 18, 2011, Olivis was sentenced to 132 months imprisonment, in accordance with his "C plea" agreement with the government. ECF No. 562. Olivis did not appeal his conviction or sentence. ECF No. 597 at 2.

On October 22, 2012, Olivis moved to vacate, set aside, or correct his sentence under § 2255. ECF No. 597. The same day, Olivis moved to hold the proceedings in abeyance pending the production of certain documents. ECF No. 598. On April 19, 2013, the government opposed the § 2255 motion. ECF No. 608.

II. Analysis

Olivis contends that his sentence should be vacated under § 2255 because: (1) he was deprived of counsel of his choice, in violation of the Sixth Amendment; and (2) his ...


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