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Ro v. United States

United States District Court, D. Maryland

June 3, 2015

MEEHWAN RO, # XXXXX-XXX, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil Nos. RWT-12-3340, RWT-13-0630

MEMORANDUM OPINION AND ORDER

ROGER W. TITUS, District Judge.

This matter arises out of a drug and firearm possession case wherein the execution of a search warrant on Petitioner Meehwan Ro's residence resulted in charges for possession of a firearm with an obliterated serial number by a felon and possession with intent to distribute marijuana. ECF No. 38. After a six-day trial beginning on November 3, 2009, the jury returned a verdict finding Ro guilty on all three charges.[1] ECF Nos. 55, 71. Now pending before the Court is Ro's petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence in which he outlines three primary arguments that he believes are proper grounds for relief: the constitutionality of the statutes under which he was convicted, the jurisdiction of this Court over his case, and ineffectiveness of counsel. ECF No. 120.

BACKGROUND

On June 11, 2009, law enforcement executed a search warrant on Ro's home while Ro, his girlfriend, and his father were present. ECF No. 25, at 1. During the search, law enforcement officers recovered approximately 135 grams of marijuana, drug paraphernalia, Ro's wallet, .45-caliber cartridges, nine-millimeter bullets, and a firearm magazine in the master bedroom, as well as a gun holster in the kitchen and a.45-caliber handgun in the top drawer of a filing cabinet in the garage. ECF No. 41, at 2. The Government charged Ro under 18 U.S.C. § 922(g)(1) for possession of a firearm after a felony conviction, 18 U.S.C. § 922(k) for possession of a firearm with an obliterated serial number, and 21 U.S.C. § 841(a)(1) for possession with intent to distribute marijuana. ECF No. 38. The case proceeded to a six-day jury trial in November 2009 and concluded with a guilty verdict on all counts. ECF Nos. 67, 71. On April 6, 2010, this Court entered a Judgment sentencing Ro to a ninety-month term of imprisonment, followed by four years of supervised release. ECF No. 98.

The Fourth Circuit affirmed this Court's verdict and sentence on January 10, 2012, United States v. Meehwan Ro, 465 F.Appx. 217 (4th Cir. 2012), and Ro filed a timely motion pursuant to § 2255 seeking to set aside, correct, or vacate his sentence on November 13, 2012, ECF No. 120. The Government responded in opposition on March 18, 2013, ECF No. 127, and Ro filed four supplements or replies in support of his motion on February 28, 2013, [2] April 22, 2013, and June 21, 2013, ECF Nos. 126, 132, 135.

DISCUSSION

Under § 2255, a petitioner must 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." 28 U.S.C. § 2255 (2012); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). If the § 2255 motion, along with the files and records of the case, "conclusively show that [he] is entitled to no relief, " a hearing on the motion is unnecessary and the claims raised in the motion may be dismissed summarily. Id. Ro presents three primary arguments that he believes are proper grounds for relief pursuant to § 2255: the constitutionality of the statutes under which he was convicted, the jurisdiction of this Court over his case, and ineffectiveness of counsel. ECF No. 120. The Court finds that all of these arguments either have no legal basis or are procedurally barred.

I. Ro's constitutional claims are procedurally barred because he neither raised them on direct appeal nor established cause, prejudice, or actual innocence.

All of Ro's claims, aside from ineffectiveness of counsel, are procedurally barred because (1) he did not raise them on direct appeal and (2) he has failed to establish cause, prejudice or actual innocence in order to prevail over his procedural default. First, Ro alleges that Congress did not pass the statutes under which he was convicted and that they are, therefore, unconstitutional. ECF No. 120, at 2-3. Ro further alleges that given the unconstitutionality of the statutes, the Court had no authority to convict him or to sentence him to imprisonment. Id. at 3. Second, Ro asserts that the Court had neither the territorial nor subject matter jurisdiction to hear his case. Id. at 4-5; ECF 126, at 4; ECF No. 132, at 2. Finally, Ro claims ineffectiveness of counsel because his attorney did not raise these arguments at trial.[3] ECF No. 120, at 5; ECF No. 126, at 4-5. Ro could have, but failed to raise his claims on appeal, and all of them, aside from ineffectiveness of counsel, are constitutional claims.

As a general rule, claims not raised on direct appeal are procedurally defaulted on habeas review. United States v. Frady, 456 U.S. 152, 165 (1982). Collateral attack is not a substitute for appeal. Id. For constitutional claims, a petitioner may surmount procedural default if he can demonstrate both cause and prejudice or actual innocence. See United States v. Pettiford, 612 F.3d 270, 275 (4th Cir. 2010); Bousely v. United States, 523 U.S. 614, 621 (1998). A nonconstitutional claim must additionally be "a fundamental defect which inherently resulted in a complete miscarriage of justice." United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999).

Cause "turn[s] on whether the prisoner can show that some objective factor external to the defense" impeded compliance with the procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). Furthermore, a defendant can only establish actual prejudice when "the error worked to his actual and substantial disadvantage, ' not merely that the error created a possibility of prejudice.'" Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997) (quoting Murray, 477 U.S. at 494). If cause and prejudice are not demonstrated, Ro may only overcome procedural default by establishing "actual innocence" meaning "factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 615 (1998). For the Court to entertain the collateral attack, a defendant must press beyond mere declarations and prove innocence "by clear and convincing evidence." Mikalajunas, 186 F.3d at 493.

Ro provides no justification for failing to raise his constitutional claims on direct appeal. He presents no external factor to the defense that impeded compliance and simply declares that his defense counsel is at fault for not considering or raising these constitutional claims. ECF No. 120, at 5. However, prior counsel's "failure to consider" an "argument is insufficient to constitute cause" for a procedurally defaulted claim. Rose v. Lee, 252 F.3d 676, 687-88 (4th Cir. 2001) (applying the Murray standard for "cause"). Even if Ro could establish cause, he does not prove that the omission of these contentions actually or substantially disadvantaged him or his case. As a matter of law, asserting frivolous and meritless statutory and jurisdictional claims cannot establish actual prejudice because these claims would not have materially affected the outcome of the case or the severity of the sentence. See infra Section II.

Aside from these arguments, Ro does not even attempt to present new or factual evidence in his § 2255 petition that demonstrates his actual innocence. Ro has not established cause, prejudice, or actual innocence required to overcome his procedural default; therefore, all of his claims, aside from ineffectiveness of counsel, are procedurally barred.

II. Ro's claims regarding the constitutionality of the statutes under which he was convicted and the jurisdiction of this ...


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