United States District Court, D. Maryland, Northern Division
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 ...