United States District Court, D. Maryland
BARON D. CUNNINGHAM
UNITED STATES OF AMERICA Criminal No. DKC 08-0215
DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this case is the motion of Petitioner Baron Cunningham ("Mr. Cunningham" or "Petitioner"), to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (ECF No. 76). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Petitioner's motion will be denied.
I. Factual Background
On May 5, 2008, a single-count indictment was returned against Mr. Cunningham, charging him with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). (ECF No. 10). Mr. Cunningham was arraigned on May 16, 2008 and entered a plea of not guilty. (ECF No. 11). Petitioner subsequently filed several motions, including: a motion to suppress evidence, (ECF No. 17), which Petitioner initially withdrew at a motions hearing held on October 8, 2009, (ECF No. 33), but later refiled on October 28, 2009, (ECF No. 40); a motion to dismiss the indictment for lack of jurisdiction, (ECF No. 35), which was denied by memorandum opinion and order issued on October 20, 2009 (ECF No. 37); and motions for discovery and inspection (ECF No. 41) and to quash criminal complaint (ECF No. 48), which were rendered moot when Petitioner pled guilty on December 1, 2009.
Petitioner entered into a plea agreement on December 1, 2009, the day his trial was set to begin. (ECF No. 52). Mr. Cunningham stipulated to the following facts as part of his plea agreement:
On January 17, 2008, Prince George's County Police officers responded to 5800 Eastpine Drive, Riverdale Maryland, in response to a report of a suspicious vehicle. Upon arrival, officers observed a tan Honda sedan, which matches the description provided in the report. The car was occupied by a female in the driver's seat and Baron Cunningham in the front passenger seat.
Officers approached and spoke with the occupants of the car. Cunningham was shaking and appeared nervous. A record check revealed an open warrant for Cunningham through the Prince George's County Sheriff's Office.
Cunningham was arrested and searched. From his left jacket pocket, officers recovered a loaded Smith & Wesson 50, .38 caliber revolver, bearing serial number AVS2456. This firearm was manufactured in Massachusetts and, therefore, traveled in interstate commerce. The firearm was stolen in 2007 during the residential burglary in Riverdale, Maryland.
Cunningham has the following felony convictions: 1) 7/1/1993 - carrying a dangerous weapon and attempted possession with intent to distribute cocaine in the District of Columbia; 2) 7/28/1994 - possession with intent to distribute cocaine in Prince George's County, Maryland; 3) 6/18/2002 - possession of cocaine in Prince George's County, Maryland; 4) 7/21/2003 - possession with intent to distribute cocaine in Prince George's County, Maryland; and 5) 2/15/2007 - credit card fraud in Prince William County, Virginia. Cunningham's civil rights, including the right to possess a firearm, have not been restored.
(ECF No. 53-1).
After several postponements at his request, Petitioner was sentenced on November 16, 2010 to 108 months imprisonment and three (3) years of supervised release, and ordered to pay a special assessment of $100. (ECF Nos. 73 & 83-3). On December 2, 2011, Petitioner filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 76). The Government opposes the motion. (ECF No. 83).
II. Standard of Review
28 U.S.C. § 2255 requires a petitioner asserting constitutional error to prove by a preponderance of the evidence 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." If the Section 2255 motion, along with the files and records of the case, conclusively shows that petitioner is not entitled to relief, a hearing on the motion is unnecessary and the claims raised in the motion may be summarily denied. See 28 U.S.C. § 2255(b).
A. Ineffective Assistance of Counsel
Petitioner asserts claims for ineffective assistance of counsel based on his attorneys' performance during plea negotiations and during sentencing.
Claims of ineffective assistance of counsel are governed by the well-settled standard adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim under Strickland, the petitioner must show both that his attorney's performance fell below an objective standard of reasonableness and that he suffered actual prejudice. See Strickland, 466 U.S. at 688. To demonstrate actual prejudice, Petitioner 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.
In the Strickland analysis, there exists a strong presumption that counsel's conduct falls within a wide range of reasonably professional conduct, and courts must be highly deferential in scrutinizing counsel's performance. Strickland, 466 U.S. at 688-89; Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991). Courts must assess the reasonableness of attorney conduct "as of the time their actions occurred, not the conduct's consequences after the fact." Frye v. Lee, 235 F.3d 897, 906 (4th Cir. 2000). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, ...