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Shuron v. United States

United States District Court, D. Maryland

June 4, 2014

DERRICK SHURON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. RDB-11-0045

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

On November 15, 2011, Petitioner Derrick Shuron ("Petitioner" or "Shuron") pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §922(g)(1) and was sentenced by this Court to a term of imprisonment of 100 months. Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 58) pursuant to 28 U.S.C. § 2255 on January 28, 2013 and a Motion for Leave to File an Amended Motion[1] (ECF No. 72) on April 2, 2014. Petitioner also moved for Summary Judgment (ECF No. 67) in his favor on July 22, 2013. On May 16, 2014, the Government filed a Response in Opposition to Petitioner's Motion to Vacate (ECF No. 75). This Court recognizes that Petitioner is pro se and has accorded his pleadings liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2010). For the reasons that follow, Petitioner's Motion For Leave to File an Amended Motion (ECF No. 72) is GRANTED, but his Motion for Summary Judgment (ECF No. 67) and Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 58) pursuant to 28 U.S.C. § 2255 are both DENIED.

BACKGROUND

In August of 2010, members of the Drug Enforcement Administration's High Intensity Drug Trafficking Area Group 57 began investigating Petitioner based on information that he was selling large quantities of marijuana from a barbershop where he was employed. See Plea Agreement 9, ECF No. 25. Following a controlled purchase of a large quantity of marijuana made inside the babershop, agents obtained search and seizure warrants for Petitioner, his residence, his vehicle, and the barbershop. Id. On September 22, 2010, agents executed the warrants and seized two firearms: a Stoeger Cougar.40 caliber handgun was discovered at the barbershop inside Petitioner's locker and a Smith and Wesson.38 caliber revolver handgun was discovered at Petitioner's residence next to a dresser on which there was a box containing marijuana. See Statement of Probable Cause 4-5, ECF No. 75-2.

On January 26, 2011, Petitioner was charged in a three-count indictment with one count of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) (Count I); one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §924(c)(1)(A) (Count II); and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count III). On November 13, 2011, Petitioner appeared before this Court and pled guilty to Count III of the Indictment. On February 13, 2012, Petitioner was sentenced by this Court to a term of imprisonment of 100 months.

STANDARD OF REVIEW

To state a claim for relief 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, 671 (1984). Hill v. Lockhart, 474 U.S. 52, 58 (1985). Under the first prong of the Strickland test, a defendant must show that counsel's performance was so deficient as to fall below an "objective standard of reasonableness" based on "prevailing professional norms." Strickland, 466 U.S. at 687-88. Counsel's performance must be analyzed "from counsel's perspective at the time, " in order to "eliminate the distorting effects of hindsight." Id. at 689. In assessing counsel's performance, judicial scrutiny "must be highly deferential" with "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.

In applying the Strickland test, the United States Court of Appeals for the Fourth Circuit has noted that there is no reason to address both prongs if the defendant makes "an insufficient showing on one.'" Moore v. Hardee, 723 F.3d 488, 500 (4th Cir. 2013) (quoting Strickland, 466 U.S. at 697). Thus, ineffective assistance of counsel claims may be disposed of based solely on a deficiency in satisfying either the "performance" prong or the "prejudice" prong. See Strickland, 466 U.S. at 697. The Fourth Circuit has also noted that the mere possibility of a different trial result does not satisfy the burden of proving prejudice placed on the defendant. See Hoots v. Allsbrook, 785 F.2d 1214, 1221 (4th Cir. 1986). Additionally, "[i]neffective assistance claims are generally not cognizable on direct appeal... unless [an attorney's ineffectiveness] conclusively appears from the record.'" United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008) (quoting United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)). Furthermore, when a defendant alleges ineffective assistance after a guilty plea has been entered, the burden of proving the second prong of prejudice becomes even greater. In Hooper v. Garraghty, the Fourth Circuit explained: "Such a defendant "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hooper, 845 F.2d 471, 75 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

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. Attorney General, 956 F.2d 1290, 1297 (4th Cir. 1992). The Fourth Circuit has also noted 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 (4th Cir. 1986). Thus, ineffective assistance of counsel claims may be disposed of solely based on a deficiency in showing prejudice. See Strickland, 466 U.S. at 697. Additionally, "[i]neffective assistance claims are generally not cognizable on direct appeal... unless [an attorney's ineffectiveness] conclusively appears from the record.'" United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008) (quoting United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)).

ANALYSIS

I. Motion to Amend Pleadings Pursuant to Rule 15(a)

Petitioner requests leave to amend his Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The Government has not opposed Petitioner's Motion to Amend. Because Petitioner's pleading was one to which a response was required, Federal Rule of Civil Procedure 15(a) enables him to amend his pleading within 21 days of the government's response to his original § 2255 Motion. Fed.R.Civ.P. 15(a)(1)(B). Since Petitioner filed his Motion to Amend prior to the Government's Response, his Motion to Amend is timely. It should also be noted that the Federal Rules of Civil Procedure favor "freely [giving] leave to amend." Fed.R.Civ.P. 15(a)(2). Accordingly, Petitioner's Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 is GRANTED and is considered below.

II. Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, Challenging a Guilty Plea Based on Ineffective Assistance of Counsel

Petitioner lodges four arguments as to why his sentence should be corrected. The first three posit that his counsel was ineffective in (1) not moving the court to suppress evidence discovered during an alleged warrantless search, (2) not moving the court to suppress evidence due to alleged false averments in search warrants, and (3) not challenging as illegal a four level enhancement of Petitioner's offense level calculation. The fourth argument posits that the sentencing enhancement pursuant to § ...


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