United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
This Memorandum addresses Allen Smith's pending Motion for Reconsideration as to the denial of his post-conviction petition. ECF 1376 ("Motion" or "Motion to Reconsider").
Smith was one of twenty-eight defendants indicted on February 8, 2008, on racketeering and drug conspiracy charges. ECF 1. On August 14, 2009, Smith was sentenced to 151 months' imprisonment (ECF 590), after having pled guilty on May 6, 2009, to conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. § 1962(d). ECF 533; ECF 534. Judgment was entered August 17, 2009. ECF 597. On May 17, 2011, the United States Court of Appeals for the Fourth Circuit affirmed Smith's conviction. United States v. Smith, 640 F.3d 580 (4th Cir. 2011); see also ECF 1183; ECF 1194. Smith filed a petition for a writ of certiorari to the United States Supreme Court, which was denied on October 11, 2011. See Smith v. United States, ___ U.S. ___, 132 S.Ct. 430 (2011).
On October 22, 2012, Smith, self-represented, filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF 1308), supported by a memorandum (ECF 1308-1) (collectively, the "Petition"). The government opposed the Petition (ECF 1321) and Smith submitted a reply. ECF 1333. By Memorandum Opinion and Order dated November 5, 2013 (ECF 1370; ECF 1371), Judge Quarles denied the Petition.
Smith filed the pending Motion on December 6, 2013. ECF 1376. The government submitted a response in opposition on February 19, 2014. ECF 1392, "Opposition." No reply was filed.
On May 23, 2014, the government also filed a Motion to Allow Disclosure of Attorney-Client Communications and Work Product, related to the Motion to Reconsider. ECF 1401. In that motion, it seeks to supplement its Opposition with an affidavit from Smith's trial counsel ( id. at 2), but notes that its position remains that Smith's Petition "was properly denied, on the existing record, without the need for an attorney affidavit." Id. Smith did not respond. However, on June 30, 2015, Smith requested an update on the status of his Motion to Reconsider. ECF 1456.
In the interim, on June 12, 2015, Smith filed a Motion to Reduce Sentence (ECF 1452), pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the U.S. Sentencing Guidelines. The government opposed Smith's Motion to Reduce Sentence. ECF 1459. Judge Quarles denied that motion by Order dated January 7, 2016. ECF 1460.
No hearing is necessary to resolve the Motion to Reconsider. See Local Rule 105.6. For the reasons stated below, I shall deny Smith's Motion.
I. Procedural Background
A review of Smith's original Petition is useful for resolving the pending Motion.
The Petition asserted three primary arguments to support Smith's contention that his conviction was improper due to ineffective assistance of counsel. ECF 1308 at 2-8. Smith argued: (1) his counsel failed to properly investigate Smith's alibi witnesses ( id. at 3-4); (2) counsel labored under a conflict of interest ( id. at 5-6); and (3) counsel improperly failed to challenge Smith's career offender status at sentencing. ECF 1308 at 7-8; see also ECF 1370 at 4-5. Judge Quarles rejected these arguments, pursuant to Strickland v. Washington, 466 U.S. 668 (1984).
Smith had argued that two alibi witnesses would have proven his actual innocence. ECF 1308-1 at 3. Judge Quarles found that this assertion "directly contradict[ed] [Smith's] sworn testimony at his Rule 11 proceeding." ECF 1370 at 6. And, because Smith had not shown that any extraordinary circumstances existed to place his Rule 11 proceeding in question, the court accepted "the truth of his sworn statements at his guilty plea" and disregarded Smith's claim. ECF 1370 at 7 (citing United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005)).
Judge Quarles also found that Smith could not demonstrate any prejudice. Id. Along with his Petition, Smith submitted affidavits from the witnesses he claimed would have supported his alibi. See ECF 1308-3, Affidavit of Sean Frazier; ECF 1308-4, Affidavit of Anthony Flemming. Judge Quarles found the affidavits to "refute only a small portion of the Government's case" against Smith. ECF 1370 at 7. Accordingly, Smith had "not shown a reasonable probability that he would not have pled guilty but for his counsel's failure to investigate." Id.
Judge Quarles found Smith's allegation regarding conflict of interest similarly flawed. As summarized in the Memorandum Opinion, Smith argued that a conflict of interest existed because his counsel entered into a discovery agreement with the government, and this agreement "prevented counsel from investigating, challenging evidence, and having meaningful conversations with Smith." ECF 1370 at 8; see also ECF 1308 at 5-6, Petition. In analyzing this contention, Judge Quarles relied on a two-part standard from United States v. Nicholson, 475 F.3d 241, 249 (4th Cir. 2007).
Under Nicholson, to "establish that a conflict of interest resulted in ineffective assistance, [m]ore than a mere possibility of a conflict... must be shown.' The petitioner must show (1) that his lawyer was under an actual conflict of interest' and (2) that this conflict adversely affected his lawyer's performance.'" Id. at 249 (citations omitted and alterations in original).
Applying this test, Judge Quarles determined that Smith's conflict of interest claims were unfounded. ECF 1370 at 9. He noted that "[e]ntering into a discovery agreement with the Government is a common practice in this district and does not create a conflict of interest." ECF 1370 at 9. Moreover, Judge Quarles found that Smith had not advanced a compelling argument to suggest how the discovery agreement adversely impacted Smith's defense. Id.
In his Petition, Smith also averred that his counsel "failed to object to the court's application of the career offender provision which resulted in Smith receiving an increased sentence." ECF 1308 at 7-8, Petition. In particular, Smith argued that his prior arrests for two controlled substance offenses in September 2002 were consolidated and should not have counted as two prior convictions. ECF 1308 at 7-8, Petition.
Judge Quarles was unpersuaded by this argument because it contradicted Smith's Presentence Report ("PSR"), which reflected that Smith's two prior convictions were separate and distinct. ECF 1370 at 10-11; see also Presentence Report, ¶¶ 39, 46, 50, 52 (discussing Smith's career offender status and relevant criminal history); Addendum to Presentence Report. Notably, Judge Quarles also found that, "even if these two offenses counted only once, Smith has a clearly separate conviction for a similar offense; which-with either of the other convictions- would have been sufficient to earn Smith a career offender status." Id. at 11.
Based on this reasoning, Judge Quarles denied Smith's Petition. ECF 1371, Order. Thereafter, Smith filed the pending ...