United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM, District Judge.
was charged in a four-count indictment with conspiracy to
distribute controlled substances, in violation of 21 U.S.C. Â§
846; conspiracy to import controlled substances, in violation
of 21 U.S.C. Â§ 963; conspiracy to launder monetary
instruments, in violation of 18 U.S.C. Â§ 1956(h); and
conspiracy to smuggle bulk cash outside of the United States,
in violation of 18 U.S.C. Â§ 371. ECF No. 1. He was convicted
on all four counts following a jury trial. ECF No. 105.
Defendant was sentenced to 160 months' incarceration. ECF
No. 164. He appealed, and the Fourth Circuit remanded for the
correction of a clerical error but otherwise affirmed. ECF
No. 166-2. The Supreme Court denied certiorari. Def.'s
Mot. 3, ECF No. 174. He also filed a petition for writ of
habeas corpus with the Supreme Court, which returned his
petition without filing it. Def.'s Exs. 18-39, ECF No.
pending is Defendant's Motion to Vacate, Set Aside or
Correct A Sentence pursuant to 28 U.S.C. Â§ 2255, ECF No. 174,
which the parties have briefed fully, ECF Nos. 176 & 182.
A hearing is not necessary. See Loc. R. 105.6.
Defendant asserted four grounds for relief, Def.'s Mot.
5-9, but then "concede[d] that several of his grounds
are procedurally defaulted." Def.'s Reply 1. He
originally insisted in Ground Two that this Court, the Fourth
Circuit, and the Supreme Court failed to "address the
requisite[e] prongs necessary to establish proof beyond a
reasonable doubt [for] the crime transporting bulk
cash...." Def.'s Mot. 6. But now, acknowledging that
"the circuit court has ruled on the sufficiency of the
evidence in his case, " he abandons Ground Two.
Def.'s Reply 1. He also acknowledges that Ground Three,
in which he asserted that this Court "abuse[d] its
discretion when sentencing applicant to the conspiracy count,
" Def.'s Mot. 8, "has been procedurally
foreclosed, " Def.'s Reply 2.
appears that Defendant abandons his argument in "Ground
One" that his trial counsel "was negligent and
ineffective for not timely filing prepared Motion For New
Trial And For Judgment Notwithstanding The Verdict."
Def.'s Mot. 5. In any event, Defendant fails to make the
necessary showing of prejudice from this alleged negligence,
see Strickland v. Washington, 466 U.S. 668, 687-91
(1984), given that the Court still considered the motion.
See ECF No. 122. Defendant further appears to
abandon Ground Four, in which he argues that his trial
counsel rendered ineffective assistance by "pressuring
[him] to plead guilty." Def.'s Mot. 9. In his Reply,
"[h]e acknowledges he did reject the proffered plea
agreement at the December 4, 2012 hearing." Def.'s
Reply 1. Again, Defendant fails to show prejudice, as clearly
he did not succumb to any pressure he might have felt to
plead guilty. See id. Thus, Defendant cannot prevail
on his ineffective assistance of counsel claim on either of
these bases. See Strickland, 466 U.S. at 687-91.
still maintains in Ground One that he received ineffective
assistance from his trial counsel, who allegedly
"withheld exculpatory evidence." Def.'s Mot. 5,
9. Because Duarte fails to show that the wrongs that he
perceives caused any prejudice, I conclude that his trial
counsel's representation does not support Defendant's
claim of ineffective assistance of counsel. Therefore, I am
denying Defendant's Motion to Vacate, Set Aside or
U.S.C. Â§ 2255(a) permits a prisoner to file a motion to
vacate, set aside or correct his sentence on the ground that
it "was imposed in violation of the Constitution or laws
of the United States...." The prisoner must prove his
case by a preponderance of the evidence. Brown v. United
States, Civil No. DKC-10-2569 & Crim. No.
DKC-08-529, 2013 WL 4562276, at *5 (D. Md. Aug. 27, 2013). If
the court finds for the prisoner, "the court shall
vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate." 28 U.S.C. Â§
2255(b). Although "a pro se movant is entitled
to have his arguments reviewed with appropriate deference,
" the court may summarily deny the motion without a
hearing "if the Â§ 2255 motion, along with the files and
records of the case, conclusively shows that [the prisoner]
is not entitled to relief." Brown, 2013 WL
4562276, at *5 (citing Gordon v. Leeke, 574 F.2d
1147, 1151-53 (4th Cir.1978); 28 U.S.C. Â§ 2255(b)).
prevail on a claim of ineffective assistance of counsel as
the alleged Constitutional violation,
a petitioner must show that counsel's performance was
constitutionally deficient to the extent that it fell below
an objective standard of reasonableness, and that he was
prejudiced thereby. Strickland v. Washington, 466
U.S. 668, 687-91 (1984). In making this determination, there
is a strong presumption that counsel's conduct was within
the wide range of reasonable professional assistance.
Id. at 689; see also Fields v. Attorney Gen. of
Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992).
Furthermore, the petitioner "bears the burden of proving
Strickland prejudice." Fields, 956
F.2d at 1297. "If the petitioner fails to meet this
burden, a reviewing court need not consider the performance
prong." Fields, 956 F.2d at 1297 (citing
Strickland, 466 U.S. at 697). In considering the
prejudice prong of the analysis, the Court may not grant
relief solely because the petitioner can show that, but for
counsel's performance, the outcome would have been
different. Sexton v. French, 163 F.3d 874, 882 (4th
Cir. 1998). Rather, the Court "can only grant relief
under... Strickland if the result of the proceeding
was fundamentally unfair or unreliable.'"
Id. (quoting Lockhard v. Fretwell, 506 U.S.
364, 369 (1993)).
United States v. Lomax, Civil No. WMN-13-2375 &
Crim. No. WMN-10-145, 2014 WL 1340065, at *2 (D. Md. Apr. 2,
Reply, Defendant clarifies that his contention is that
"trial counsel failed to present sufficient exculpatory
evidence at trial." Def.'s Reply 2. According to
Defendant, "years' worth of legitimate business
records from [his] auto sales company.... were freely and
readily available to trial counsel" and "would have
been an obviously favorable rebuttal of the assertion that
[he] engaged in travel to the U.S. exclusively to launder
drug money." Id. at 3. He argues that
"[t]he introduction of exculpatory evidence at trial
would have significantly cut into th[e] assertion [that there
was overwhelming evidence' against him] and strongly
influenced the jury on [his] behalf." Id. at 2.
Defendant contends that his business records would have
negated evidence creating the inference that his fifty-eight
entries into the United States between January 2, 2000 and
October 23, 2010 were for the purpose of laundering drug
money, rather than for legitimate business purposes. Yet,
even if Defendant had presented the evidence and led the jury
to conclude that his repeated entries were for legitimate
business purposes, the following additional evidence, as
summarized by the Fourth Circuit, still would have been
presented to the jury:
In 2003, Duarte was stopped by Arkansas law enforcement with
approximately $1.1 million in cash stashed in a secret
compartment in a Chevy Tahoe that he was driving after just
having left the company of a well known leader of a
significant drug distribution network based out of Guatemala.
The leader's name was Napolean Villagran. The evidence at
trial also showed that in 2004, Duarte collected money and
accepted cars as payment for drug debts to Villagran....
Duarte also delivered messages to co-conspirators Jose
Sandoval and Marilyn Navas and other distributors in the
United States on Villagran's behalf. In 2006, Duarte
negotiated a debt owed to Villagran by Navas and offered her
more drugs to sell to cover her debt.
United States v. Duarte, No. 13-4468, slip op. at 2
(4th Cir. Aug. 14, 2014). Given the extent of this evidence
against Duarte, he cannot show that the jury's finding
was "fundamentally unfair or unreliable, '" and
consequently he cannot show prejudice. See Sexton v.
French, 163 F.3d at 882; Lockhard, 506 U.S. at
369; see also Swann v. Taylor,173 F.3d 425, 1999 WL
92435 (4th Cir. 1999) ("Given the extensive evidence of
Swann's guilt and of his future dangerousness, ... there
is virtually no basis upon which Swann can argue that the
result of either phase of the trial proceedings [in which his
counsel failed to object to Defendant wearing leg shackles]
was fundamentally unfair or unreliable."); Fisher v.
Angelone,163 F.3d 835, 849 (4th Cir. 1998) (concluding
that, even if "counsel's failure to state the
grounds for its objection [to tapes that prosecution offered
into evidence] was objectively unreasonable, ... Fisher was
not prejudiced in any way by counsel's actions"
because "[t]he tapes were but a small part of the
prosecution's overwhelming case against Fisher.... In
sum, we cannot say that, but for counsel's failure to
state the grounds for his objection to the tapes, there is a
reasonable probability that the result of the proceeding
would have been different or ...