United States District Court, D. Maryland, Northern Division
December 5, 2014
KEITH ANTOINE JONES, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No. WDQ-08-0441.
WILLIAM D. QUARLES, Jr., District Judge.
On January 22, 2009, Keith Antoine Jones pled guilty to possession with intent to distribute cocaine base and heroin,  and being a felon in possession of a firearm. ECF Nos. 21, 22. He was sentenced to 188 months imprisonment. ECF No. 34. Pending is Jones's petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. ECF No. 81. No hearing is necessary. See Rule 8 of the Rules Governing § 2255 Proceedings. For the following reasons, Jones's petition will be granted.
On April 15, 2008, Baltimore County Police detectives seized, pursuant to a warrant, 111.7 grams of heroin; gelatin capsules, baggies, sifters, scales, and cutting agents - tools for packaging heroin for street-level distribution; over $20, 000; and a.45 caliber handgun, from Jones's apartment. ECF No. 22 ¶ 4.
On September 16, 2008, Jones was indicted for: (Count One) possession with intent to distribute five grams or more of cocaine base and a quantity of heroin (based on an earlier incident); (Count Two) possession with intent to distribute 100 grams or more of heroin; and (Count Three) being a felon in possession of a firearm. ECF No. 7.
Creston Smith, Esq., represented Jones. ECF No. 4. On January 22, 2009, following a plea agreement, Jones pled guilty to counts two and three of the indictment. ECF Nos. 21, 22. In the plea agreement, Jones admitted that he possessed with intent to distribute 111.7 grams of heroin and after being convicted of a felony, had knowingly possessed a firearm that had traveled in interstate commerce. ECF No. 22 ¶¶ 2, 6. He agreed that the adjusted offense level, before chapter 3 or 4 adjustments, was 28. Id. ¶ 6. The parties disputed whether Jones was a career offender or armed career criminal. Id. ¶¶ 6-7.
The government agreed to a three-level reduction in the offense level for acceptance of responsibility. Id. ¶ 6. It also agreed that if the Court found that Jones was a career offender or armed career criminal, the government would recommend a sentence within the advisory guidelines range. Id. ¶ 9.
Jones waived his right to appeal a sentence "within... the adjusted base offense level of 25 (31 if [he] is a career offender or an armed career criminal)." Id. ¶ 11.
Jones and Smith signed the plea agreement. ECF No. 12 at 8. Jones acknowledged that he understood and voluntarily agreed to the plea agreement and that the stipulated facts were true. Id. Smith represented that he had reviewed the agreement with Jones, and Jones had told him he understood and accepted the terms, and was signing the agreement voluntarily. Id. Jones repeated these representations at his rearraignment. ECF No. 46 at 11:11-18; 12:12-17.
On March 4, 2009, Jones petitioned for a Writ of Error Coram Nobis in the District Court for Baltimore County, challenging a 1999 resisting arrest conviction. ECF No. 57-5. On March 17, 2009, Jones moved to postpone his sentencing pending the results of the coram nobis petition. ECF No. 26. On August 4, 2009, the District Court for Baltimore County declined to vacate the conviction. ECF No. 57-5 at 5.
On June 1, 3, and 9, 2009, Jones petitioned for Writs of Error Coram Nobis in the Circuit Court for Baltimore City, challenging three attempted distribution and possession with intent to distribute convictions. ECF No. 86-2. The convictions occurred in 2000, 2001,  and 2004. ECF No. 86-3 at 2-3.
Jones challenged the 2001 conviction for attempted distribution of cocaine on grounds that his plea was not knowing or voluntary because he "was not advised of the elements of the offense, and he was given various descriptions of the offense to which he was pleading guilty." ECF No. 86-2 at 5. Jones argued that, "[h]ad [he] been properly advised... by the Court, or counsel, the intelligent choice would have been to challenge the State's case...." Id. at 8. Had counsel failed to advise Jones to challenge the State's case, Jones " would clearly have had an ineffective assistance of counsel argument." Id. (emphasis added).
On October 23, 2009, the Circuit Court declined to vacate the 2001 and 2004 convictions. ECF No. 86-3 at 12-13. On the issue of ineffective representation by counsel during Jones's August 29, 2001 plea proceeding, the Circuit Court concluded that "[t]his assertion is not at issue before this court." ECF No. 86-3 at 11. The Circuit Court noted that Jones's "failure to seek counsel by the hearing date, which was at least the second in the series, was sufficient to assume waiver of counsel." Id. The Circuit Court stated that Jones did not object when, during the plea colloquy, he was informed about the waiver, and agreed that the public defender's assistance, as a friend of the court, was adequate. Id. Thus, the Circuit Court found "any claim of ineffectiveness of counsel very dubious... based upon the clear waiver made by [Jones]." ECF No. 86-3 at 11. The Circuit Court also found that Jones received adequate representation by LaCorte when he accepted the plea resulting in his 2004 conviction. Id. at 12.
On December 11, 2009, at sentencing, Smith unsuccessfully objected to the use of Jones's resisting arrest conviction as a crime of violence. ECF No. 47 at 3:7-24, 4:5-8. Smith noted the unsuccessful coram nobis petitions. Id. at 6:19-7:8. The Court concluded that Jones had 15 criminal history points, qualified as a career offender, and was subject to enhancements under the Armed Career Criminal Act ("ACCA") and related guideline. Id. at 4:8-11.
Jones's total offense level was 31, and his criminal history category was VI, yielding an advisory sentencing guidelines range of 188 to 235 months imprisonment. U.S.S.G. CH. 5, Pt. A (sentencing table). Because he was subject to the ACCA, Jones's statutory mandatory minimum sentence was 15 years. The Court sentenced Jones to concurrent 188 month sentences. ECF No. 34.
On June 8, 2010, Jones wrote to the Fourth Circuit, asking whether Smith had filed an appeal on his behalf. ECF No. 40. The Fourth Circuit forwarded the letter to the District of Maryland; on June 28, 2010, it was docketed as a notice of appeal. Id. On January 24, 2011, the Fourth Circuit dismissed the appeal as untimely. ECF No. 51. The dismissal was effective on February 15, 2011. ECF No. 52.
On March 10, 2011, Jones moved to vacate his sentence. ECF No. 53. On June 23, 2011, he moved for a hearing. ECF No. 59. On August 11, 2011, the Court appointed Sicilia Englert, Esq., to represent Jones on the motion. ECF Nos. 60-62. She supplemented the briefings. ECF Nos. 65, 67. The government opposed the motion to vacate. ECF Nos. 57, 66.
On February 23, 2012, a hearing was held to determine whether Jones had asked Smith to appeal Jones's sentence. ECF No. 68. Jones testified that immediately after being sentenced, he spoke with Smith in the courthouse. ECF No. 81-2 at 11:2-6. Jones testified he then specifically told Smith to appeal the sentence. Id. at 11:10-16. Jones said that he also spoke with Smith on the phone during the week after he was sentenced and told Smith to "come see [Jones] so we can discuss the appeal." Id. at 11:17-12:14.
Smith testified that he had 50 to 60 open criminal cases when he was representing Jones. Id. at 21:20. He remembered that, after sentencing, he discussed with Jones the likelihood of success on appeal, and Jones had waived many of his appeal rights. Id. at 22:16-19. He testified that, if Jones had asked, he would have filed an appeal despite the waiver. Id. at 19:7-11. He did not recall Jones specifically telling him to file an appeal. Id. at 19:22-20:8.
Smith further testified that he had not challenged Jones's 2001 conviction as an ACCA predicate at sentencing; however, "had that predicate not been used, " Smith "would have... argu[ed]" that Jones was not subject to the ACCA. Id. at 27:5-20. He recalled explaining to Jones that, even if they were successful in challenging the application of the ACCA, he would still be sentenced to from 188 to 235 months because he was a career offender. Id. at 17:16-21, 19:3-6.
On February 29, 2012, the Court granted Jones's § 2255 petition on his claim that Smith provided ineffective assistance of counsel by refusing to file an appeal, and granted Jones a belated appeal. ECF No. 70. The Court declined to reach the other issues raised in Jones's petition. ECF Nos. 69 at 1, 11.
On November 7, 2012, the Fourth Circuit Court of Appeals, by unpublished opinion, affirmed this Court's determination that Jones was a career offender and an Armed Career Criminal ("ACC"), and affirmed Jones's 188-month sentence. ECF No. 76. The Fourth Circuit found that Jones and waived his right to challenge his ACC designation because he had not "argue[d] at sentencing that the 2001 and 2004 drug offenses did not qualify as ACCA predicate conversions while challenging his [ACC] status on another ground." Id. at 5.
On December 3, 2012, the Court granted Jones's request to re-appoint counsel to "pursue the issues pending in his motion to vacate as well as supplemental issues arising out of the denial of his direct appeal." ECF Nos. 77, 80.
On August 7, 2013, Jones refiled the instant § 2255 petition. ECF No. 81. On December 11, 2013, the government opposed. ECF No. 86. On January 13, 2014, Jones replied. ECF No. 89.
Jones contends that he received ineffective assistance of counsel because Smith failed to challenge his 2001 and 2004 convictions as ACCA predicate offenses, which - Jones argues - were obtained in violation of his Sixth Amendment right to counsel. ECF No. 81 at 3-5. The government contends that Smith was not ineffective for failing to challenge those convictions because Jones's coram nobis petitions had been denied by the Circuit Court. ECF No. 86 at 3. Jones contends, however, that federal sentencing courts are "not bound by a state court's denial of a coram nobis petition." ECF No. 89 at 2.
A. Legal Standard for Ineffective Assistance of Counsel
The Sixth Amendment guarantees the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To prove ineffective assistance, Jones must show: (1) counsel's performance was deficient and (2) the deficiency prejudiced his defense. Id. at 687.
To show deficient performance, Jones must establish that counsel made errors so serious that the "representation fell below an objective standard of reasonableness." Id. at 688. There is "a strong presumption that counsel's conduct was within a wide range of reasonably professional conduct." Kratsas v. United States, 102 F.Supp.2d 320, 322 (D. Md. 2000) aff'd, 9 F.App'x 107 (4th Cir. 2001) ( citing id. at 688-89). To overcome this presumption, Jones must show "that the challenged action [did not] amount  to trial strategy." Luchenburg v. Smith, 79 F.3d 388, 392 (4th Cir. 1996).
To show prejudice, he must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Because Jones argues that the sentence - rather than the conviction - was imposed without effective assistance of counsel, he must show that his sentence would have been less if counsel had not erred. United States v. Breckenridge, 93 F.3d 132, 136 (4th Cir. 1996). Counsel's failure "to object to an improper application of the sentencing guidelines may amount to ineffective assistance." Id.
B. State Convictions
Jones contends that two prior state convictions were obtained in violation of his Sixth Amendment right to counsel: (1) in 2001, because he did not have counsel when he pled guilty, and he had not effectively waived his right to counsel; and (2) in 2004, because the Circuit Court did not obtain a waiver of counsel or "valid consent to proceed with substitute counsel." ECF No. 81-1 at 12-18.
Uncounseled state convictions may be the subject of collateral attack in a federal sentencing proceeding. Custis v. United States, 511 U.S. 485 (1994). Although on direct appeal the government bears the burden of proving that a defendant's waiver of his Sixth Amendment right to counsel is valid, Brewer v. Williams, 430 U.S. 387, 404 (1977), "in a collateral attack on an uncounseled conviction, it is the defendant's burden to prove that he did not competently and intelligently waive his right to the assistance of counsel." Iowa v. Tovar, 541 U.S. 77, 92 (2004).
1. Jones's 2001 Conviction
A criminal defendant may waive the right to counsel when the waiver is: (1) clear and unequivocal; (2) knowing, intelligent, and voluntary; and (3) timely. See United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir.2000) (collecting cases); see also Patterson v. Illinois, 487 U.S. 285, 292-300 (1988). A waiver is knowing and intelligent when a suspect is aware of "the usefulness of counsel to the accused at the particular proceeding, and the dangers to the accused of proceeding without counsel." Patterson, 487 U.S. at 298. A waiver is voluntary when it is uncoerced. See Faretta v. California, 422 U.S. 806, 835 1975) (defendant waiving counsel must be "made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open'") ( quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)).
"[T]he scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized, " is determined based on the "particular stage of the proceedings" at issue. Patterson, 487 U.S. at 298. "[A] more searching or formal inquiry" is required "before permitting an accused to waive his right to counsel at trial." Id. at 299.
Maryland law provides guidance on assessing whether a defendant has by inaction waived his right to counsel. See Parren v. State, 523 A.2d 597, 600 (Md. 1987) (noting that Maryland Rule 4-215 was adopted "to implement the constitutional guarantees"). Maryland Rule 4-215(c) provides that,
[i]n the District Court, if the defendant appears on the date set for trial without counsel and indicates a desire to have counsel, the court shall permit the defendant to explain the appearance without counsel....
If the court finds that there is no meritorious reason for the defendant's appearance without counsel, the court may determine that the defendant has waived counsel by failing or refusing to obtain counsel and may proceed with the trial only if (1) the defendant received a copy of the charging document containing the notice as to the right to counsel and (2) the defendant either (A) is charged with an offense that is not punishable by a fine exceeding five hundred dollars or by imprisonment,  or (B) appeared before a judicial officer of the District Court pursuant to Rule 4-213(a) or (b) or before the court pursuant to section (a) of this Rule and was given the required advice.
Similarly, under Maryland Rule 4-215(d),
[i]f a defendant appears in circuit court without counsel on the date set for hearing or trial, indicates a desire to have counsel, and the record shows compliance with section (a) of this Rule, either in a previous appearance in the circuit court or in an appearance in the District Court in a case in which the defendant demanded a jury trial, the court shall permit the defendant to explain the appearance without counsel.
If the court finds that there is a meritorious reason for the defendant's appearance without counsel, the court shall continue the action to a later time and advise the defendant that if counsel does not enter an appearance by that time, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds that there is no meritorious reason for the defendant's appearance without counsel, the court may determine that the defendant has waived counsel by failing or refusing to obtain counsel and may proceed with the hearing or trial.
In deciding whether the defendant's reason is meritorious, "the court's inquiry (1) must be sufficient to permit it to exercise its discretion... (2) must not ignore information relevant to whether the defendant's inaction constitutes waiver... and (3) must reflect that the court actually considered the defendant's reasons for appearing without counsel before making a decision." Broadwater, 931 A.2d at 1114-15.
Here, at Jones's August 29, 2001 plea proceeding, the Circuit Court did not conduct any inquiry - let alone a "searching inquiry" - into Jones's waiver of counsel when he pled guilty; it merely noted that the District Court had found that Jones had waived that right. ECF No. 86-1 at 8:8-14. Jones evidently desired counsel when he appeared before the Circuit Court for his plea colloquy because he had, by then, contacted the public defender's office, and because he consulted with the public defender appearing as a friend of the court. ECF Nos. 86-1 at 8:8-9; 81-2 at 26:17-20.
Assuming, arguendo, that the District Court had complied with Maryland Rule 4-215(a) when it found that Jones had waived by inaction,  the Circuit Court did not provide Jones an opportunity to explain counsel's absence. See ECF 86-1 at 8:8-14. Thus, the Circuit Court never determined whether Jones's reasons for appearing without counsel were "meritorious, " and did not make an independent finding that Jones had waived by inaction under Maryland Rule 4-215(d). Id. at 8:12-14. Notwithstanding the public defender's consultation as a friend of the court, Jones's waiver was invalid under Maryland law. See Maus v. State, 523 A.2d 1066, 1080 (Md. 1987)(vacating judgment, and finding that the defendant was denied his right to counsel when the judge failed to ask the defendant why he did not have an attorney when he appeared for trial, thus neglecting "to make a proper waiver determination" in violation of Maryland Rule 4-215(d)).
2. Jones's 2004 Conviction
A defendant's "[right to] counsel is completely denied" when his appointed or retained attorney, with whom he has worked throughout the proceedings, is "absen[t from] a critical stage' of a trial" or proceeding. Olden v. United States, 224 F.3d 561, 568 (6th Cir.2000) ( quoting United States v. Cronic, 466 U.S. 648, 659 (1984)). That another attorney "stand[s] in" and speaks on behalf of the defendant does not avoid the constitutional violation. Id. An attorney who "stands in" for a defendant's counsel does not become that defendant's counsel until that defendant knowingly, intelligently, and voluntarily waives his right to be represented by the attorney who has represented him throughout the proceeding. See id. at 568-69. Without that waiver, the absence of selected counsel from critical proceedings is a complete deprivation of counsel. Id. 
"The entry of a guilty plea, whether to a misdemeanor or a felony charge, ranks as a critical stage at which the right to counsel adheres." Tovar, 541 U.S. at 81 (internal quotation marks and citation omitted).
Here, Jones's counsel, Rowland, was absent from the entire guilty plea, a critical stage of the proceeding. Although Jones stated that he was satisfied with LaCorte's services, he never waived his right to his appointed attorney. ECF No. 81-4 at 13:16-19. See Olden, 24 F.3d at 569 (defendant did not knowingly and intelligently accept substitute counsel, thereby waiving his right to have his own counsel present, when defendant, on the record, stated that he had no objection to substitute counsel). Because the conviction was obtained in counsel's absence, and without valid waiver, it was obtained in violation of Jones's Sixth Amendment right to counsel. See United States v. Ratchford, No. CRIM. WDQ-11-0557, 2012 WL 3679221, at *2 (D. Md. Aug. 21, 2012)( citing Custis, 511 U.S. at 496.).
C. Deficient Performance
Because Jones's 2001 and 2004 convictions were obtained in violation of his Sixth Amendment right to counsel, the Court must determine whether Smith provided ineffective assistance at Jones's federal sentencing by failing to challenge those convictions as ACCA predicates.
As discussed above, to show deficient performance, Jones must establish that Smith's "representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. The government contends that Smith provided effective assistance by filing the coram nobis petitions; further, because the Circuit Court denied the petitions before Jones's federal sentencing, Smith was "not obligate[d]... to further argue issues for which he had already received an adverse ruling." ECF No. 86 at 5-8.
Here, the coram nobis petition Smith filed for Jones in connection with his 2001 conviction did not directly raise, and, thus, the Circuit Court did not rule, on the issue of ineffective assistance of counsel. See ECF Nos. 86-2, 86-3. The Circuit Court stated that "[t]his assertion is not at issue before this court." ECF No. 86-3 at 11. It then described the proceedings, and stated that "any claim of ineffectiveness of counsel [was] very dubious... based upon the clear waiver by [Jones]." Id. However, the Circuit Court did not analyze whether the District Court - or the Circuit Court conducting the plea proceeding - complied with Maryland Rule 4-215 when finding waiver by inaction, or whether it committed reversible error by failing to comply. By definition, "dubious" "give[s] rise to uncertainty." Thus, at Jones's federal sentencing, Smith should have known that Jones had an unresolved Sixth Amendment claim.
On Jones's 2004 conviction, the Circuit Court did not address whether Jones had waived his right to representation by Rowland; it addressed whether LaCorte was ineffective, and found that he had not been. See id. at 11-12. Thus, at Jones's federal sentencing, he also had an unresolved Sixth Amendment claim in connection with his right to representation by Rowland when he pled guilty in 2004.
Smith's decision not to challenge the 2001 and 2004 convictions as ACCA predicates did not appear to be for reasons of strategy. Smith testified that if the 2001 conviction was not a predicate offense, he would have argued that Jones was not subject to the ACCA. ECF No. 81-2 at 27:5-9. Thus, it appears - though the record is unclear - that Smith relied on the Circuit Court's denial of Jones's coram nobis petitions to inform his decision-making on whether to challenge the convictions as ACCA predicates.
However, as discussed above, the Circuit Court's limited analysis of Jones's representation did not preclude Smith from raising those issues at sentencing. Under Custis, defendants are permitted to collaterally attack state "convictions obtained in violation of the right to counsel, " 511 U.S. at 487, 496. Thus, Smith's performance was deficient when he failed to challenge the 2001 and 2004 convictions as ACCA predicates on grounds that they were obtained in violation of Jones's Sixth Amendment right to counsel. See United States v. Tucker, 603 F.3d 260, 265 (4th Cir. 2010) (trial counsel ineffective for failing to challenge conviction as ACCA predicate when information in the PSR placed counsel on notice that conviction was not for a violent felony under the ACCA); Breckenridge, 93 F.3d at 136.
Jones contends that he was prejudiced by Smith's failure to challenge the 2001 and 2004 convictions because, if successful, he would not have been an armed career criminal. ECF No. 81-1 at 22. Free from the ACCA mandatory minimum of 15 years, Jones contends that he would have been eligible for a reduced sentence under 18 U.S.C. § 3553(a). Jones concedes that he still would have been sentenced as a career offender. ECF No. 81-1 at 22. However, if the 2001 and 2004 convictions were inapplicable, his criminal history points would have been reduced from 15 to 10. Id. On that basis, "he could have argued that designation as a career offender overrepresented his criminal history." Id.
The government contends that Jones was not prejudiced because even if he was not subject to the ACCA, his career offender status prescribed a guideline range of 188 to 235 months incarceration. ECF No. 86 at 6. The government further contends that, assuming, arguendo, that Jones's criminal history was overrepresented,  a one level downward departure in his criminal history category would have yielded a guideline range of 168 to 210 months; thus, because his 188 month sentence was within that range, Jones was not prejudiced. Id.
As discussed above, to establish prejudice, Jones must show that his sentence would have been less if counsel had not erred. Breckenridge, 93 F.3d at 136; Tucker, 603 F.3d at 267.
Without the 2001 and 2004 ACCA predicates, Jones would not have had sufficient qualifying convictions for - and, thus, would not have been subject to - that statute's 15 year mandatory minimum sentence. As a career offender, Jones's offense level of 31 would have remained unchanged. See U.S.S.G. §§ 3E1.1, 4B1.1. Although establishing prejudice generally requires petitioners to show that they would have received a reduced sentence,  "[t]he touchstone of an ineffective-assistance claim is the fairness of the adversary proceeding." Lockhart v. Fretwell, 506 U.S. 364, 370 (1993). Had the Court not relied upon Jones's 2001 and 2004 convictions obtained in violation of his Sixth Amendment right to counsel, Jones's criminal history points would have been reduced from 15 to 10. See PSR at 6-8. Accordingly, Jones would have been eligible for a downward departure of one criminal history category, from category VI to category V, yielding a guideline range of 168 to 210 months. U.S.S.G. § 4A1.3(b)(3)(A). Further, the Court would have considered whether 18 U.S.C. § 3553(a) factors favored a reduced sentence. In light of his troubled upbringing, Jones was sentenced at the bottom of the guideline range, ECF No. 47 at 12:17-24; if Jones had not been sentenced as an ACC, it is likely that he would have received a sentence lower than 188 months.
Thus, Jones has demonstrated that Smith's ineffective assistance prejudiced the outcome of his sentencing. Having demonstrated deficient performance, and prejudice, Jones is entitled to relief.
For the reasons stated above, Jones's petition to vacate, set aside, or correct his sentence under § 2255, is granted, and Jones will be resentenced.