United States District Court, D. Maryland
ROGER W. TITUS, District Judge.
Pending before the Court is the petition of Jamohl Aaron Swann ("Swann") under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Swann argues that his retained counsel was ineffective on four grounds: (1) counsel failed to argue that the underlying Maryland state convictions for which Swann's sentences were enhanced were Constitutionally invalid, (2) counsel induced Swann to plead guilty by giving him an erroneous sentencing guideline calculation, (3) counsel induced Swann to plead guilty to an offense of which he is factually innocent, and (4) counsel, after negotiating a "defective plea" agreement was disbarred from practicing law before the U.S. District Court of Maryland and the Fourth Circuit. ECF No. 236.
For the reasons stated below, the Court will dismiss Swann's petition.
Factual and Procedural History
On July 10, 2008, Swann was indicted for conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C § 846, among other related charges. ECF No. 1. Swann has three prior drug distribution convictions, stemming from his pleading guilty to three separate instances of cocaine distribution in the Circuit Court for Charles County, Maryland. See A separate Order follows. Maryland v. Swann (Case Nos. CR98-0532, CR98-668, and CR98-777). These prior cocaine distribution convictions qualify as three "serious drug offenses".
On May 9, 2009, Swann pleaded guilty to Counts 1, 2, 3 and 4 of the Second Superseding Information. ECF No. 127. Count 1 charged Swann with conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base and 5 kilos or more of cocaine pursuant to 21 U.S.C. § 846; Count 2 charged Swann with possession of a firearm in furtherance of a drug trafficking crime pursuant to 18 U.S.C. § 924(c); Count 3 charged Swann with being a felon in possession of a firearm/ammunition pursuant to 18 U.S.C. § 922(g)(1); Count 4 charged Swann with money laundering pursuant to 18 U.S.C. § 1956(a)(1)(B)(i). Id.
On August 31, 2010, Swann was sentenced to 180 months imprisonment for Counts 1, 3, and 4, to be served concurrently. ECF No. 223. For Count 2, Swann received 60 months imprisonment, to be served consecutively. Id. Swann appealed his judgment to the Fourth Circuit on September 15, 2010, but later withdrew his appeal on September 16, 2010. ECF Nos. 225, 227.
On February 9, 2011, Swann filed a Writ of Error Coram Nobis with the Circuit Court for Charles County, Maryland. See Maryland v. Swann (Case No. CR98-0777). A Writ of Error Coram Nobis is an ancient common law writ, allowed without a time limitation, to correct factual errors which affect the validity of a judgment. Skok v. State, 760 A.2d 647, 654-656 (Md. 2000). In the Writ of Error Coram Nobis, Swann objects to the three cocaine distribution convictions in the Circuit Court for Charles County, Maryland. See Maryland v. Swann (Case No. CR98-0777). Swann's Writ of Error Coram Nobis is still pending. Id. On August 23, 2011 Swann filed this timely pro se motion pursuant to 28 U.S.C. § 2255. ECF No. 236.
On July 14, 2008, the Court appointed John Chamble, of the Office of the Federal Public Defender, to represent Swann. ECF No. 3. Mr. Chamble represented Swann during the initial appearance, detention hearing, arraignment, and also for sentencing. ECF Nos. 3, 18, 28, 173. On October 1, 2008 Mr. Chamble withdrew as counsel upon notice of retained counsel, Patrick Christmas. ECF No. 64.
Mr. Christmas began plea negotiations between Swann and the Government. ECF No. 245. On January 28, 2009, Mr. Christmas was not present for a telephone status conference. ECF No. 94. On May 8, 2009, Mr. Christmas withdrew as counsel upon notice of new retained counsel, Elmer Ellis. ECF No. 129.
Mr. Ellis represented Swann for the remainder of plea negotiations and throughout the plea hearing. ECF No. 132. Ellis was later suspended from the practice of law for 120 days by the Court of Appeals for the District of Columbia. See In re: Elmer Douglas Ellis, No. 07-8511, ¶1 (February 20, 2009). On December 3, 2009, the District of Columbia Court of Appeals ordered reciprocal discipline on Mr. Ellis until he "met the legal education requirements imposed by the D.C. Circuit." Id. ¶ 2.
On September 29, 2009, United State Magistrate Judge William Connelly held an inquiry hearing and appointed prior counsel, John Chamble to represent Swann. ECF No. 173. Mr. Chamble returned to represent Swann throughout his sentencing. ECF Nos. 173, 221.
Under 28 U.S.C. § 2255, to have his sentence vacated, set aside, or corrected, a petitioner must prove 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." 28 U.S.C. § 2255.
Relief under § 2255 may be found when the outcome "inherently results in a complete miscarriage of justice and presents exceptional circumstances that justify collateral relief under § 2255." United States v. Metzger 3 F.3d 756, 756 (4th Cir. 1993) (citing David v. United States, 417 U.S. 333, 346-47 (1974) (internal quotation marks omitted). However, if the petitioner's motion and the record, "conclusively show that [he] is entitled to no relief, " a hearing on the motions is unnecessary and the claim may be dismissed. 28 U.S.C. § 2255(b); United States v. White, 366 F.3d 291, 296-97 (4th Cir. 2004).
Courts examine claims of ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, defendants must first "show that counsel's performance was deficient" (the "performance prong"). Deficient performance is performance that is objectively unreasonable and "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 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 show "that the deficient performance prejudiced the defense" (the "prejudice prong"). Id. at 687. To demonstrate prejudice, 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. "Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687.
"In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. at 691. Moreover, if a defendant alleges ineffective assistance of counsel following entry of a guilty plea, he "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 v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) (internal quotation marks omitted).
Petitioners that challenge guilty pleas under § 2255 on the basis of ineffective assistance of counsel, where the plea was voluntary and the petitioner had indicated satisfaction with counsel, encounter more difficulty. See United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005). "[B]ecause courts must be able to rely on the defendant's statements made under oath... allegations in a § 2255 motion that directly contradict the petitioner's sworn statements made during a properly conducted Rule 11 colloquy are always palpably incredible' and patently frivolous or false.'" Id. "[I]n the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and ...