United States District Court, D. Maryland
PETER J. MESSITTE, District Judge.
David Morris Barren, pro se, has filed a Motion to Vacate Conviction under 28 U.S.C. § 2255 [Paper No. 286], a Motion for Discovery and Production of Documents [Paper No. 293], an Amendment to Motion to Vacate [Paper No. 294], and a Motion for Leave to Amend Motion to Vacate [Paper No. 295]. Having considered the Motions and the Government's Oppositions, the Court DENIES them.
A grand jury returned a Second Superseding Indictment against Barren and two co-conspirators charging them with multiple counts of: (1) Conspiracy to Distribute Controlled Substances; (2) Conspiracy to Structure Financial Transactions; (3) Transactional Money Laundering; (4) Concealment Money Laundering; (5) Promotion Money Laundering; (6) Reporting Evasion Money Laundering; (7) Structuring Financial Transactions; (8) Criminal Forfeiture; and (9) Aiding & Abetting. A petit jury subsequently convicted Barren on Counts 1, 2, and 5-53 of the Second Superseding Indictment. The Court sentenced Barren to life imprisonment.
The Fourth Circuit affirmed the Court's judgment and sentence and the Supreme Court denied Barren's petition for a writ of certiorari. Barren then filed the instant Motion to Vacate, the Motion for Discovery and Production of Documents, the Amendment to Motion to Vacate, and the Motion for Leave to Amend Motion to Vacate. The Amendment to Motion to Vacate raises three new claims for relief, which Barren, through his Motion for Leave to Amend Motion to Vacate, asks to have considered as part of his § 2255 Motion.
In his § 2255 Motion, Barren argues that: (1) the Court lacked jurisdiction because the Indictment was defective or, alternatively, because the Indictment was constructively amended; (2) the Court erred when it ruled that evidence gathered during the search and seizure and subsequent inventory search of his vehicle was admissible at trial; and (3) conflicting witness testimony and improperly admitted expert testimony at trial deprived him of his constitutional rights.
In response, the Government argues that Barren's claims are procedurally defaulted because he has not identified cause for failing to raise them on direct appeal and failed to demonstrate prejudice, and that the claims otherwise lack merit.
The Court agrees with the Government that all claims are procedurally defaulted.
If a claim is not raised on direct appeal, it is considered procedurally defaulted and cannot be raised on collateral attack unless the petitioner can demonstrate there was cause for the default and that prejudice resulted from the default. Massaro v. United States, 538 U.S. 500, 504 (2003); United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999) ("to collaterally attack a conviction or sentence based upon errors that could have been but were not pursued on direct appeal, the movant must show cause and actual prejudice resulting for the errors... or he must demonstrate that a miscarriage of justice would result from refusal of the court to entertain the collateral attack."). The "cause and prejudice" standard requires that a defendant establish not only that "some objective factor external to the defense" impeded his efforts to raise the issue earlier, Coleman v. Thompson, 501 U.S. 722, 753 (1991), but also that the alleged error "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
Barren asserts that he raised the claims in his § 2255 Motion on direct appeal in his pro se "Supplemental Briefs." However, when the Fourth Circuit denied the appeal prepared by Barren's attorney, it also denied Barren's motion to file a pro se supplemental brief, without considering the merits of the supplemental claims. The Fourth Circuit's rationale was clear. On appeal, Barren was represented by counsel, and "there is no constitutional right to hybrid representation." Myers v. Johnson 76 F.3d 1330, 1335 (5th Cir. 1996) "By accepting the assistance of counsel the criminal appellant waives his right to present pro se briefs on direct appeal." Id .; see also Fed. R. App. P. 28(a), (c) (permitting appellant to file a formal opening and a reply brief); United States v. Roseby, 454 F.App'x 186, 187, n. 2 (4th Cir. 2011) (unpublished) ("Because [appellant] is represented by counsel who has filed an extensive merits brief, as opposed to a brief pursuant to [ Anders v. California, 386 U.S. 738 (1967)], he is not entitled to file a pro se supplemental brief and we deny the motion."). Since the Fourth Circuit specifically denied Barren leave to file a supplemental brief, the claims in the supplemental brief were not properly raised on direct appeal and are therefore procedurally defaulted in the present proceeding.
As to Grounds 1 and 3 of his § 2255 Motion, which arise from the same facts, Barren argues that the Court lacked jurisdiction because Count 1 of the Indictment was defective, or in the alternative, because the indictment was constructively amended. He claims that Special Agent Brown incorrectly told the Grand Jury that Barren conspired with Jerry Davis in Prince George's County, Maryland. At trial, however, Brown testified that this statement may have been incorrect, based on witness testimony that Barren had not in fact met Davis. Barren says the Government changed its theory of the case when Brown testified about other co-conspirators. In consequence, in Ground 1, Barren claims that the withdrawal of Brown's testimony about Barren conspiring with Davis rendered the Indictment defective and deprived the Court of jurisdiction. In Ground 3, Barren claims that Brown's change in testimony represented a constructive amendment to the Indictment because the Government's evidentiary basis for conviction at trial differed from and expanded upon the evidence supporting his Indictment.
The Court finds these claims are procedurally defaulted and unsustainable on the merits.
The claims are procedurally defaulted because Barren did not raise them on direct appeal when he clearly could have done so. Moreover he has not alleged cause for his failure to raise the claims, and he failed to ...