United States District Court, D. Maryland
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE
Petitioner Vicente Bilora Mbenga (“Petitioner” or “Edwards”) was convicted by jury of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349, two counts of bank fraud, in violation of 18 U.S.C. § 1344, and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A. Petitioner was sentenced to a total of seventy-two (72) months imprisonment. After the United States Court of Appeals for the Fourth Circuit affirmed the judgment against him, Petitioner filed the presently pending Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 438). Additionally, Petitioner has filed two other papers, stylized as motions for summary judgment, which raise the same basic issues and respond to the arguments presented in the Government’s opposition brief.
The parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, Petitioner Vicente Bilora Mbenga’s Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 438) pursuant to 28 U.S.C. § 2255 is DENIED.
Petitioner Vincente Bilora Mbenga was originally indicted by grand jury for conspiracy to commit bank fraud and one count of bank fraud. Subsequently, a superseding indictment added another count of bank fraud and two counts of aggravated identity theft on April 28, 2010.
Petitioner was convicted by a jury of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349, two counts of bank fraud, in violation of 18 U.S.C. § 1344, and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A on July 5, 2011 after a five-day trial. At the September 29, 2011 sentencing hearing, this Court calculated the intended loss to be greater than $200, 000 but less than $400, 000, and therefore twelve offense levels were added. This Court also determined that the evidence showed that the scheme used sophisticated means and that Petitioner was a leader and organizer of the scheme. This Court also applied a two level guideline adjustment for obstruction of justice, which related to Petitioner’s “outing” of a winess against him who was also being detained. Accordingly, Petitioner was sentenced to a sentence of seventy-two months.
After the judgment was affirmed by the United States Court of Appeals for the Fourth Circuit, Petitioner filed the currently pending Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 438) on May 13, 2013. Petitioner also requested access to redacted copies of some government exhibits, which he received. Subsequently, Petitioner filed a supplement to his motion. See ECF No. 451. In those papers, Petitioner asserted various arguments concerning alleged ineffective assistance of counsel, mostly relating to various enhancements applied to him at sentencing.
Before the Government filed its response, Petitioner filed a Motion for Summary Judgment (ECF No. 481) asserting that their were no factual matters in dispute with regard to his petition. After the Government filed its opposition brief, Petitioner filed an addition paper (ECF No. 488), again stylized as a motion for summary judgment, that responded to the Government’s arguments.
STANDARD OF REVIEW
This Court recognizes that Petitioner is pro se and has accorded his pleadings liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside or correct his sentence where (1) “the sentence was imposed in violation of the Constitution or laws of the United States, ” (b) the court lacked “jurisdiction to impose the sentence, . . . [(c)] the sentence was in excess of the maximum authorized by law, or [(d) the sentence] is otherwise subject to a collateral attack.” 28 U.S.C. § 2255. “[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.’ ” United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
To state a claim for relief under 28 U.S.C. § 2255 based on a Sixth Amendment claim of ineffective assistance of counsel a petitioner must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 671 (1984). See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). The first, or “performance” prong, of the test requires a showing that defense counsel’s representation was deficient and fell below an “objective standard of reasonableness.” Strickland, 466 U.S. at 688. In making this determination, courts observe a strong presumption that counsel’s actions fell within the “wide range of reasonable professional assistance.” Id. at 688-89. The second, or “prejudice” prong, requires that defendant demonstrate that his counsel’s errors deprived him of a fair trial. Id. at 687.
In applying the Strickland test, the United States Court of Appeals for the Fourth Circuit has noted that there is no reason to address both prongs if the defendant makes “‘an insufficient showing on one.’” Moore v. Hardee, 723 F.3d 488, 500 (4th Cir. 2013) (quoting Strickland, 466 U.S. at 697). Thus, ineffective assistance of counsel claims may be disposed of based solely on a deficiency in satisfying either the “performance” prong or the “prejudice” prong. See Strickland, 466 U.S. at 697. The Fourth Circuit has also noted that the mere possibility of a different trial result does not satisfy the burden of proving prejudice placed on the defendant. See Hoots v. Allsbrook, 785 F.2d 1214, 1221 (4th Cir. 1986). Additionally, “[i]neffective assistance claims are generally not cognizable on direct appeal . . . ‘unless [an attorney’s ineffectiveness] conclusively appears from the record.’” United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008) (quoting United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)).
The Strickland standard applies to both trial and appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285 (2000) (“The proper standard for evaluation [a] claim that appellate counsel was ineffective . . . is that enunciated in Strickland.”). First, Petitioner must show that his appellate counsel rendered objectively unreasonable assistance by failing to discover and present “nonfrivilous issues.” Id. Second, ...