United States District Court, D. Maryland
ROGER W. TITUS, District Judge.
Pending is Petitioner Ronald Thomas's Amended Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255. Upon review of the papers filed, and for the reasons stated below, the Court will deny Thomas's motion and his requests for an evidentiary hearing and discovery.
On August 11, 2004, Thomas was arrested with a backpack containing over 50 grams of crack cocaine and 126.3 grams of cocaine hydrochloride. Plea Agreement, Govt. Resp. Ex. 1 at 9, ECF No. 155-1 at 9. On September 11, 2006, Thomas was indicted by a federal grand jury in the United States District Court for the District of Maryland. He was charged with three drug offenses under 21 U.S.C. § 841. Revised Presentence Report, Govt. Resp. Ex. 3 at 4, ECF No. 155-3 at 4. On October 16, 2007, Thomas pled guilty to Count Two of the indictment, which charged him with distribution of 50 grams or more of cocaine base. Tr. of Rule 11 Colloquy, Govt. Resp. Ex. 2 at 4-9, ECF No. 155-2 at 4-9. His plea agreement found the base offense level to be 32. ECF No. 155-1 at 4. However, the agreement specified that, if Thomas were determined to be a career offender pursuant to U.S.S.G. § 4B1.1, the base offense level would increase to 37. Id. The agreement also provided that the government did not object to reducing his offense level by two levels. Id. Thomas was informed during the Rule 11 colloquy that his classification as a career offender would not be determined before a Presentence Report ("PSR") was submitted in advance of his sentencing hearing. ECF No. 155-2 at 10-11, 26.
The plea agreement also provided that the government waived its right to file a 21 U.S.C. § 851 enhancement notice. ECF No. 155-1 at 5. Under Section 851, if an enhancement notice had been filed and the case went to trial and Thomas were convicted, the Court would be required to impose a sentence of life imprisonment without parole. See Tr. of Hr'g on Mot. to Withdraw Guilty Plea and Sentencing, June 4, 2008, ECF No. 155-7 at 89-94. However, in exchange for Thomas's plea of guilty to Count Two, the Government waived this enhancement right. ECF No. 155-1 at 5. Additionally, by signing the plea agreement, Thomas waived his right to a direct appeal of any sentence imposed by the Court within or below the range stipulated by the guidelines for an offense level of 35. Id at 6.
In a letter filed on November 6, 2007, Thomas submitted a pro se motion to withdraw his guilty plea. Pro Se Mot. to Withdraw Guilty Plea, Govt. Resp. Ex. 4, ECF No. 155-4. On December 19, 2007 and January 3, 2008, Thomas filed pro se supplements to his original motion to withdraw his guilty plea. Supplement to Mot. to Withdraw Guilty Plea, Dec. 19, 2007, Govt. Resp. Ex. 5, ECF No. 155-5; Supplement to Mot. to Withdraw Guilty Plea, Jan. 3, 2008, Govt. Resp. Ex. 6, ECF No. 155-6. On January 29, 2008, the Court entered an Order granting defense counsel Louis Martucci's motion to withdraw from the case. ECF No. 83. The docket reflects that on January 31, 2008, attorney Edward Sussman's appearance was entered as Thomas's new counsel. ECF No. 84. On February 25, 2008, Sussman filed a Supplemental Memorandum in Support of Thomas's Pro Se Motion to Withdraw his Guilty Plea. ECF No. 88.
The Presentence Report dated December 19, 2007 categorized Thomas as a career offender within the meaning of U.S.S.G. § 4B1.1, establishing an offense level of 37. ECF No. 155-3 at 6. Relying on his prior convictions, the PSR calculated a criminal history category of VI based on a total of fifteen criminal history points, or alternatively "two prior felony convictions involving controlled substance offenses." Id. at 6-12. Because Thomas moved pro se to withdraw the guilty plea, he lost the two-point reduction in his offense level for accepting responsibility. Id. at 6; Tr. of Hr'g on Mot. to Withdraw Guilty Plea and Sentencing, Ex. 8 at 18-19, ECF No. 155-8 at 18-19.
At a June 5, 2008 hearing, this Court denied Thomas's motion to withdraw his plea and sentenced Thomas to 400 months' imprisonment and five years of supervised release. ECF No. 155-8 at 31-32. On December 4, 2009, the U.S. Court of Appeals for the Fourth Circuit affirmed this Court's denial of Thomas's motion to withdraw the guilty plea. United States v. Thomas, 355 F.Appx. 690 (4th Cir. 2009). The Fourth Circuit held that this Court did not abuse its discretion and that the "Rule 11 hearing was extensive, as was the subsequent hearing on the motion to withdraw." Id. at 691-92. The Fourth Circuit "found no credible evidence of ineffective assistance of counsel, undue pressure or actual innocence." Id.
On April 22, 2011, Thomas filed a "placeholder" Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 and a Motion for Leave to File an Amended Motion Pursuant to 28 U.S.C. § 2255. ECF Nos. 139 & 140. On September 14, 2011, the Court granted Thomas's Motion for Leave to File an Amended Motion Pursuant to § 2255 and granted the Government an extended deadline to respond. ECF No. 145. On January 6, 2012, Thomas filed an Amended Motion to Vacate Sentence, arguing that his conviction and sentence violated his Sixth Amendment right to assistance of counsel. Mem. in Supp. of Am. Mot. to Vacate Sentence Pursuant to 28 U.S.C. § 2255, ECF No. 152-1. Thomas claims that he received ineffective assistance of counsel from both Louis Martucci, who represented him at the plea bargaining stage, and Edward Sussman, who represented him at the hearing to withdraw his guilty plea and subsequent sentencing, although Thomas does not clearly distinguish between the two in his memorandum in support of his motion. See id. Thomas alleges that his counsel failed to review and challenge the criminal history that was used to determine his career offender status, should have negotiated a more favorable plea agreement on his behalf, failed to properly advise him on the repercussions of moving to withdraw his guilty plea, and committed multiple errors that ultimately prejudiced his sentencing. Id.
Under 28 U.S.C. § 2255(a), a prisoner in custody may file a motion to vacate, set aside, or correct a sentence, "claiming the right to be released upon the ground 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." 28 U.S.C. § 2255(a). Under 28 U.S.C. § 2255(b), the Court may deny the motion without an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see, e.g., Zelaya v. United States, No. DKC 05-0393, 2013 WL 4495788, at *2 (D. Md. Aug. 20, 2013).
I. Thomas's Ineffective Assistance of Counsel Claims
Ineffective assistance of counsel claims are analyzed under the two-part test described in Strickland v. Washington, 466 U.S. 668, 687 (1984), which the Fourth Circuit has adopted, see, e.g., Roach v. Martin, 757 F.2d 1463, 1476 (4th Cir. 1985). First, the defendant must show that the attorney's performance or actions were objectively unreasonable. Strickland, 466 U.S. at 687. This element "requires showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id. The Court must "evaluate the conduct [at issue] from counsel's perspective at the time, " and it "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
Second, the defendant must also demonstrate that the defendant suffered prejudice from his attorney's performance. Id. at 687. The "defendant 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 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id .; see also Marlar v. Warden, Tyger River Corr. Inst., 432 Fed.Appx. 182, 188 (4th Cir. 2011). For a defendant like Thomas who has entered a guilty plea and now seeks to attack that plea, to sufficiently demonstrate prejudice from ineffective assistance of counsel, Thomas "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." Hill v. Lockhart, 474 U.S. 52, ...