United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
Kevin Cornelius Land filed a Motion to Vacate, Set Aside, Or Correct Sentence (the "Petition"), pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel. ECF 144. The government has filed an opposition, claiming the Petition fails on the merits. ECF 169.
The Petition has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will dismiss the Petition.
I. Factual Background
On February 28, 2013, Land and five codefendants were charged in Count One of an Indictment with conspiracy to distribute and possess with intent to distribute 280 grams or more of a mixture or substance containing a detectable amount of cocaine base, also known as "crack, " a Schedule II controlled substance; 500 grams or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance; a quantity of a mixture or substance containing a detectable amount of heroin, a Schedule I controlled substance; and a quantity of a mixture or substance containing a detectable amount of oxycodone, a Schedule II controlled substance. ECF 1 (Indictment). According to the Indictment, the conspiracy operated from about June 2012 through November 28, 2012, in violation of 21 U.S.C. § 841(a)(1) and § 846.
Throughout the case, including during plea negotiations, the guilty plea proceeding, and at sentencing, Land was represented by Wayne Bennett Wiseman, court-appointed counsel.
Land entered into a plea agreement with the government. ECF 103. On August 26, 2013, Land pleaded guilty to a lesser included offense of Count One: conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. ECF 102; 103; 104; 161. The offense carried a maximum term of imprisonment of 40 years and a mandatory minimum term of 5-years' incarceration. ECF 103 ¶ 1, 3. The plea was entered pursuant to Fed. R. Crim. P. 11(c)(1)(C) (ECF 103 ¶ 12), in which the parties agreed to a sentence of 84-months' incarceration. Id. ¶¶ 12, 13. And, Land waived his rights to appeal, except as to any sentence that exceeded 84 months' imprisonment. ECF 103 ¶ 15(b).
In the Plea Agreement (ECF 103), the parties agreed that Land had an adjusted offense level of 25. Id. ¶ 10. This reflected a base offense level of 26, based on the quantity of cocaine foreseeable to Land; a two-level upward adjustment under U.S.S.G. § 2D1.1, because a firearm was possessed in connection with the conspiracy; and a three-level reduction for acceptance of responsibility pursuant to U.S.S.G. §§ 3E1.1(a) and (b). Id. ¶¶ 9, 10. There was no agreement as to defendant's criminal history or his criminal history category. Id. ¶ 11.
Prior to the guilty plea proceedings, Land's attorney asked the Court to hold sentencing immediately following Land's guilty plea. See ECF 217 (email from defense counsel dated 8/13/13); ECF 218 (email from defense counsel dated 8/16/13). The government submitted a sentencing memorandum dated August 22, 2013. ECF 101. Wiseman also submitted a sentencing memorandum on the same date, with attachments. ECF 219. In their submissions, counsel for both sides asked the Court to proceed directly to sentencing immediately after the guilty plea and to impose the agreed-upon sentence of 84-months' incarceration, in accordance with the "C plea."
In anticipation of sentencing, defense counsel also submitted to Chambers a copy of the Pre-Plea Criminal History Investigation ("PPI") prepared by the Probation and Pretrial Services Office, dated May 9, 2013. ECF 216. Among other things, the PPI reflected that Land had a Maryland State conviction in 1997 for distribution of crack cocaine, based on conduct that occurred in 1996. It also reflected a subsequent violation of probation in 1999. See ECF 216 ¶¶ 5-8; ECF 161 at 9-10 (Transcript). In addition, the PPI showed that, through October 1, 2012, Land was on parole in Maryland for two offenses. ECF 216 ¶¶ 13, 16. According to the PPI, Land had a criminal history category of V. See ECF 216 ¶ 21.
The guilty plea proceeding was held on August 26, 2013. At the outset of the plea colloquy, the defendant was sworn. ECF 161 at 2. Then, the Court reminded Land that he was under oath, id. at 4:
Q: Now, let me also caution you, sir, that you just took an oath to tell the truth. This does obligate you to answer my questions truthfully. If you were to fail to do so, it's possible you would be subjecting yourself to further charges for something such as perjury or false statement. Do you understand?
At the guilty plea proceeding, the Court reviewed the defendant's entire plea agreement with him. Land signed the Plea Agreement (ECF 103) on August 8, 2013, just below the following statement:
I have read this agreement... and carefully reviewed every part of it with my attorney. I understand it, and I voluntarily agree to it. Specifically, I have reviewed the Factual and Advisory Guidelines Stipulation with my attorney, and I do not wish to change any part of it. I am completely satisfied with the representation of my attorney. (Emphasis added).
During the plea colloquy, in response to the Court's inquiry, the defendant indicated that this statement was true and accurate. ECF 161 at 11.
In the government's presentation of the facts, the government represented that Land did not join the conspiracy until its final month in November 2012. ECF 161 at 32. The prosecutor explained that the agreement as to the time when Land joined the conspiracy "was added to the stipulation of facts" on the morning of Land's guilty plea. ECF 161 at 32. Land's delayed entry into the conspiracy spared Land from a two-point increase in his criminal history score; he joined the conspiracy in November 2012, just after the conclusion of parole in October 2012 in two Maryland cases. Id. at 2-3; see also ECF 216 ¶¶ 13, 16. Thus, the parties agreed that Land's Criminal History Category was IV, rather than the V reflected in ¶ 21 of the PPI. See ECF 161 at 36; ECF 216 ¶¶ 20, 21. An offense level of 25, with a criminal history category of IV, resulted in guidelines for imprisonment ranging from 84 to 105 months. In other words, the terms of the C plea corresponded to the bottom of the applicable advisory sentencing guidelines.
In accordance with Fed. R. Crim. P. 32(c), I agreed to proceed directly to sentencing. ECF 161 at 35-37; see also ECF 105; ECF 106. Pursuant to the terms of the C plea, I imposed a sentence of 84-months' incarceration on August 26, 2013. ECF 105; ECF 106. The time for filing an appeal expired 14 days after entry of judgment. Fed. R. App. P. 4(b)(1)(A). No appeal was filed by Land. Thus, Land's conviction became final on the expiration of the time for filing a notice of appeal. United States v. Clay, 537 U.S. 522 (2003); United States v. Wilson, 256 F.3d 217, 221 (4th Cir. 2001).
Land has since filed this Petition, pursuant to 28 U.S.C. § 2255. He presents five claims of ineffective assistance of counsel.
First, Land asserts that his attorney should have argued that Land played only a minor/minimum role in the alleged conspiracy and was therefore entitled to a sentencing reduction under U.S.S.G. § 3B1.2. ECF 144 at 1 (Petition). He states: "Under these circumstances, it is clear that defense counsel should have argued that petitioner played either a minimal or minor role in the offense and requested a 4 to 2 point reduction of his offense level which may have resulted in a significantly lower sentence than the one which was imposed." Id.
Second, Land claims he was improperly subjected to a firearm enhancement during plea negotiations. Id. at 2. He asserts: "These facts and their implications should have alerted counsel to challenge any references to the handgun as well as the enhancement clause in the plea agreement. His failure to do so caused petitioner to receive a greater sentence and therefore should not be sanctioned by this court." Id.
Third, Land argues that defense counsel should have insisted upon a drug quantity hearing. Id. He states: "Defense counsel therefore should have sought a quantity hearing because petitioner was held responsible for more than 780 grams when he was only liable for 112 grams. Defense counsel also should have objected to the plea agreements [sic] inclusion of more than 112 grams, and if unsuccessful, should have advised petitioner not to accept the plea agreement and thereafter attempt to renegotiate the plea deal." Id.
Fourth, focusing on his 1997 Maryland conviction for distribution of CDS, Land argues that Wiseman should have challenged that conviction through a coram nobis petition. Id. He maintains that the Maryland judge failed to comply with the constitutional requirements pertaining to his guilty plea. As a result, Land insists that he received a greater sentence in this case than otherwise would have been imposed. Id. at 3.
Last, Land complains that his attorney made unconstitutional "racial comments." Id.
Additional facts are included in the Discussion.
To challenge successfully a conviction or sentence under § 2255 based on a Sixth Amendment claim of ineffective assistance of counsel, a petitioner must satisfy the two-prong test set forth in the seminal case of Strickland v. Washington, 466 U.S. 668 (1984). See, e.g., United States v. Higgs, 663 F.3d 726, 735 (4th Cir. 2011) ("To succeed on a Sixth Amendment claim of ineffective assistance of counsel, the defendant must satisfy the two-prong test set forth in Strickland. "); see also United States v. Rangel, 781 F.3d 736, 742 (4th Cir. 2015); Gordon v. Braxton, 780 F.3d 196, 200 (4th Cir. 2015); Richardson v. Branker, 668 F.3d 128, 139 (4th Cir. 2012); Yarbrough v. Johnson, 510 F.3d 327, 337 (4th Cir. 2008). See generally Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012); Laffler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010).
The burden is on the petitioner to establish, by a preponderance of the evidence, that "counsel made errors so serious that counsel was not functioning as the counsel' guaranteed by the Sixth Amendment.'" Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687); see United States v. Rogers, WMN-09-467, 2013 WL 5740476, at * 5-6 (D. Md. Oct. 22, 2013). Generally, a petition filed by a self-represented litigant is construed more liberally than one filed by counsel. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Under Strickland's two-pronged test, the petitioner must show that his attorney's performance fell "below an objective standard of reasonableness, " measured by "prevailing professional norms." Strickland, 466 U.S. at 688. This is known as the "performance prong" of the test. And, the petitioner must show that his attorney's deficient performance "prejudiced [his] defense." Id. at 687. To satisfy the "prejudice prong, " a petitioner must demonstrate 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome" of the proceedings. Id.
A court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Strickland, 466 U.S. at 697. Nor must a court address both components if one is dispositive. Jones v. Clarke, 783 F.3d 987, 991 (4th Cir. 2015).
The performance prong of the Strickland test relates to professional competence. "Keenly aware of the difficulties inherent in evaluating counsel's performance, the Supreme Court has admonished that courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Lawrence v. Branker, 517 F.3d 700, 708 (4th Cir. 2008) (quoting Strickland, 446 U.S. at 689). See also Lee v. Clarke, 781 F.3d 114, 122 (4th Cir. 2015). Indeed, the Fourth Circuit has recognized that the first Strickland prong is "difficult'" to establish. Lawrence, 517 F.3d at 709 (quoting James v. Harrison, 389 F.3d 450, 457 (4th Cir. 2004)). Notably, there can be no post-conviction relief based on attorney error where the record establishes that it is "not reasonably likely that [the alleged error] would have made any difference in light of all the other evidence of guilt." Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).
To succeed here, Land must show that Wiseman's representation fell below "an objective standard of reasonableness." Strickland, 466 U.S. at 687-91. However, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and constituted "sound trial strategy." Strickland, 466 U.S. at 689. See, e.g., United States v. Terry, 366 F.3d 312, 316-18 (4th Cir.) (counsel's decision not to call three inmates who allegedly could have offered exculpatory testimony was not below wide range of professionally competent performance), cert. denied, 543 U.S. 983 (2004). Judicial scrutiny is "highly deferential, " to avoid the "distorting effects of hindsight." Strickland, 466 U.S. at 689.
To satisfy the prejudice component of the Strickland test, a 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
A. Plea Negotiations
Three of Land's claims of ineffective assistance of counsel pertain to Wiseman's performance in connection with plea negotiations-specifically, his alleged failure to insist upon a sentencing reduction for Land's minor/minimum role in the conspiracy; defense counsel's alleged failure to challenge the firearm adjustment; and Wiseman's alleged failure to insist upon a drug quantity hearing.
The Sixth Amendment right to counsel extends to the plea-bargaining process. McMann v. Richardson, 397 U.S. 749, 771 (1970). As the Supreme Court said in Hill v. Lockhart, 474 U.S. 52, 58 (1985), the two-part test under Strickland "applies to challenges to guilty pleas based on ineffective assistance of counsel." In Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988), the Fourth Circuit described a defendant's burden in a post-guilty plea claim of ineffective assistance of counsel (quoting Hill v. Lockhart, 474 U.S. at 59):
When a defendant challenges a conviction entered after a guilty plea, [the] "prejudice" prong of the [ Strickland ] test is slightly modified. Such a defendant "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."
Accord Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000); Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1294-99 (4th Cir. 1992).
In general, the government points to the favorability of Land's plea agreement. Among other things, it observes that Land pled guilty to a lesser included offense and his plea agreement resulted in a reduced sentence of 84-months' imprisonment, rather than the mandatory minimum of ten years that he faced as originally charged. ECF 1; ECF 169 at 1 (Opposition). The government also asserts, inter alia, that had Land insisted during plea negotiations upon the reductions he is now seeking, the government would have withdrawn the plea offer and gone to trial on the original charge. ECF 169 at 9.
Regarding Land's claim of entitlement to a "minor/minimum role" reduction, Land insists that Wiseman "should have argued that petitioner played either a minimal or minor role in the offense and requested a 4 to 2 point reduction of his offense level..." ECF 144 at 1. In this regard, Land claims that his conduct was not essential to the conspiracy and he only participated in it for one week.
The government points out that it made numerous concessions to defense counsel, including sparing Land from a ten-year mandatory minimum sentence, but that it "would never have stipulated that Land was a minor or minimal participant." ECF 169 at 7. The government also maintains that Land is factually incorrect in claiming he did not join the drug conspiracy until its final week at the end of November 2012. As reflected in the Statement of Facts set forth in the plea agreement, for example, ECF 103 ¶ 8, the defendant was intercepted via wiretaps in phone calls that occurred on November 17, 2012, and November 23, 2012. And, the government insists that it was prepared to show, through wiretap calls between Land and codefendant Chandler, that beginning on November 1, 2012, Land was responsible for trafficking of a significant quantity of drugs and for negotiating the sale of a firearm to Chandler. ECF 169 at 6-7.
Land seems to overlook that, at defense counsel's urging, the government agreed to limit Land's participation to the last month of the conspiracy, i.e., November 2012. ECF 161 at 32. Although Land did not receive a reduction for a minor role, the government's concession had the effect of reducing Land's criminal history category from V to IV. ECF 169 at 3. If Land had been deemed a participant as of October 1, 2012, he would have had ...