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Whiting v. United States

United States District Court, D. Maryland

October 7, 2014

REECE COLEMAN WHITING, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. RWT-04-00235

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

Pending is Petitioner Reece Whiting's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. Upon review of the papers filed, and for the reasons stated below, the Court will deny Whiting's Motion.

BACKGROUND

The conviction underlying Whiting's motion arose from a wide-ranging, multistate drug conspiracy led by Paulette Martin. A grand jury indicted Whiting in connection with that conspiracy on April 12, 2006, charging him with Conspiracy to Distribute and Possess with Intent to Distribute Controlled Substances in violation of 21 U.S.C. § 846, and use of a Communications Device to Facilitate Narcotics Trafficking in violation of 21 U.S.C. § 843(b). ECF No. 794. According to the Government, Whiting purchased drugs from Martin and her associates, and paid off his drug debts by aiding the conspiracy. Specifically, Whiting drove a co-conspirator, Emilio Echarte, to pick up drug deliveries. ECF No. 1575 at 2. At trial, Echarte testified to this arrangement with Whiting, and testified that he also saw Whiting pick up drugs from Martin's home. Id. at 2-3. In addition, the Government introduced audio recordings of Whiting requesting "tickets" from Martin and other co-conspirators. Id. at 2. The Government alleged that "tickets" was code for cocaine. Id.

After a lengthy jury trial, Whiting was convicted on all counts. ECF No. 1062. Pursuant to 21 U.S.C. § 841(b)(1)(A), Whiting was sentenced to a mandatory term of life in prison. Id. Whiting appealed his conviction and sentence on January 10, 2007. ECF No. 1066. The Fourth Circuit addressed the arguments of various defendants in an unpublished opinion. United States v. Goodwin, 452 Fed.App'x 239, 241 (4th Cir. 2011). As to Whiting, the Fourth Circuit addressed his argument that the Court improperly allowed two government witnesses to testify both as fact and expert witnesses, and his argument that the Government's notice of enhanced sentence pursuant to 21 U.S.C. § 851 was deficient. Id. at 242-44, 248-49. The court affirmed Whiting's conviction. Various other arguments were raised in the appeal, including several relevant here, which the Fourth Circuit considered but did not specifically address, concluding "they lack merit." Id. at 241.

The Fourth Circuit denied Whiting's Petition for Rehearing with Suggestion for En Banc Review. ECF No. 1479. On March 5, 2012, Whiting's Petition for Writ of Certiorari was denied by the Supreme Court. ECF No. 1575 at 2.

Whiting timely filed the instant motion on May 1, 2012. ECF No. 1506. He asserts five grounds for relief:

1. The Government knowingly used the false testimony of Echarte. ECF No. 1506 at 5.
2. The Government misused Whiting's 1984 drug conviction from Mexico to support an enhanced sentenced. Id. at 6.
3. The Government misused "prior conviction evidence in violation of Fifth Amendment Double Jeopardy Clause." Id. at 8.
4. The statute of limitations barred Whiting's conviction. Id. at 9.

5. Whiting suffered ineffective assistance of counsel, because as a drug addict suffering symptoms of withdrawal, he was unable to assist in his own defense, but his attorney did not make any attempt to determine his awareness of the proceedings. Id. at 11-12. By Order of this Court, ECF No. 1521, the Government filed an opposition addressing

Whiting's arguments. ECF No. 1575. As to the first two grounds Whiting's asserts, the Government argues that he is procedurally barred from raising these issues on collateral review, because they were not raised on direct appeal, and alternatively arguing that he is procedurally barred from raising these issues on collateral review because they were raised and considered on direct appeal. Id. at 4-8. The Government also challenges the substance of each of these arguments. Id. As to Whiting's double jeopardy and statute of limitations claims, the Government argues that these are barred because Whiting failed to raise them on direct appeal, but also addresses the substance of each claim. Id. at 9-12. As to Whiting's ineffective assistance of counsel claim, the Government argues that Whiting has failed to make a showing of ineffective assistance of counsel. Id. at 12-17.

Whiting filed a reply on February 11, 2013. ECF No. 1604. He argues that he raised grounds 1 and 2 on direct appeal, and that he only failed to raise grounds 3 and 4 because counsel refused to do so. Id. Whiting filed a supplemental brief on September 9, 2013, ECF No. ...


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