United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
5, 2015, Petitioner Chinua Shepperson's Motion to Vacate,
Set Aside, or Correct his Sentence ("Motion to
Vacate'') was docketed in the above-captioned
matter.ECF No. 771. The Government has filed a
response in opposition to the Motion to Vacate and Petitioner
has filed his reply. No hearing is necessary to resolve the
Motion. See 28 U.S.C. § 2255(b). For the
reasons that follow, Petitioner's Motion will be denied.
October 27, 201 0, Petitioner was charged in a superseding
indictment with multiple counts including conspiracy to
participate in racketeering activity (Count 1), murder in aid
of racketeering (Count 6), interference with commerce by
robbery (Count 7). using and carrying a firearm during and in
relation to a crime of violence (Count 8), and murder
resulting from the use and carrying of a firearm during and
in relation to a crime of violence (Count 9). See
ECF No. 377; ECF No. 459-1.
case was tried before a jury in March 2011. At trial, the
evidence consisted of, among other things, the testimony of
several cooperators, including one by the name of Roddy E.
Paredes, Jr. Paredes testified, in relevant part, that he and
the Petitioner were members of a gang called the "Latin
Kings, " and that on or around April 25, 2008, they,
along with other Latin King members including one named Erick
Roman, concocted a plan to rob and kill an individual who had
offered to loan them drugs-John Montoya. ECF No. 560 at 12,
29-30. According to Paredes, he introduced
Petitioner to Montoya as the buyer, and then Petitioner took
out a gun-that Paredes had given him to use-and Paredes
instructed Montoya to hand over the drugs and everything else
in his pocket. Id. at 32, 34-35. After Montoya did
so. Petitioner shot and killed him. Id. at 32.
further testified that, after the shooting, he threw
Montoya"s keys and cell phone into a creek, and, when
the group reconvened at Parades' apartment, Roman took
the drugs they stole from Montoya, while Petitioner took
Parades' gun to get rid of it. Id. at 33, 52.
Roman sold the drugs and gave the others some of the
proceeds. Id. at 52.
March 14, 2011, the jury returned a guilty verdict on each of
the counts before it. ECF No. 485; see also ECF No.
519. Petitioner was sentenced to life imprisonment on Counts
1, 6, and 9, a concurrent 240-month term of imprisonment on
Count 7, and a consecutive 120-month term of imprisonment on
Count 8. ECF No. 519. Petitioner unsuccessfully appealed his
sentence to the United. States Court of Appeals for the
Fourth Circuit, see ECF No. 743, and
Petitioner's sentence became final on May 19, 2014 when
the United States Supreme Court denied his petition for writ
of certiorari, Shepperson v. United States, 134
S.Ct. 2314 (2014).
Motion to Vacate, Petitioner primarily argues that he is
"factually innocent of counts including murder."
ECF No. 771 at 3. Specifically. Petitioner contends that
Roman has new information that could exculpate Petitioner.
Petitioner further notes that his attorney refused to speak
directly with Roman before trial because Roman was
represented by counsel, ECF No. 771-1 at 2, and that his
attorney informed him before trial that if Petitioner did not
cooperate with the Government, he would be charged for
Montoya's murder, ECF No. 771-1 at 1. In support of his
Motion, Petitioner submitted his own affidavit in which he
asserts his innocence, a handwritten letter from Roman to
Petitioner, as well as reports from a private investigator
who was hired to investigate Petitioner's "legal
matters" and "to develop an investigative strategy
aimed at generating new information regarding the murder of.
. . Montoya." ECF No. 775-2 at 2; see also ECF
No. 771-1; ECF No. 775-3; ECF No. 792.
letter, Roman asserts, among other things, that he has
"new evidence in the case, " specifically,
"people that saw the murder and can testify to it in
court. . . ." ECF No. 775-3 at 2. He further indicates
that there were witnesses to the murder who "saw it all,
and it was not [Petitioner] who they saw." Id.
at 3. Roman suggests that Paredes lied at trial "to
avoid a life sentence [or] maybe death row."
Id. In the investigator's reports, however,
Roman is described as a "fairly unscrupulous character
who, at a minimum, suffers from delusions of grandeur and
desires to be treated with greater regard than his stature
requires, " and that "much of what. . . Roman says
about other witnesses and vindicating information for
[Petitioner] are either embellishments at least or bold-faced
lies at most and finding third party corroboration in a
subsequent investigation would be difficult, bordering on
impossible.'' ECF No. 775-2 at 5. Nevertheless,
according to the investigator, "[v]arious individuals
with knowledge of this case [including] relatives, friends,
associates and neighbors speculate that [Petitioner] did not
murder . . . Montoya" but that "no one has been
willing to share . . . the name of an actual witness for fear
of safely or reprisal." ECF No. 792-1 at 1. The
investigator further reported that "there are many with
knowledge of this case who believe . . . Paredes lied in
order to gain favorable treatment or reduced sentencing,
" id. at 2, a suspicion supported by the fact
that Paredes testified at trial that he did not have a
problem lying to the government agents if he stood to
benefit. See ECF No. 560 at 110.
order to be entitled to relief under 28 U.S.C. § 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(a); see also United
States v. Moore, 993 F.2d 1541 (4th Cir. 1993)
(unpublished) (citing Vanater v. Boles, 377 F.2d 898
(4th Cir. 1967)). A pro se petitioner is, of course, entitled
to have his arguments reviewed with appropriate
consideration. See Gordon v. Leeke, 574 F.2d 1147,
1151-53 (4th Cir. 1978). Where, however, a § 2255
petition, along with the files and records of the case,
conclusively shows the petitioner is not entitled to relief,
a hearing on the motion is unnecessary and the claims raised
therein may be dismissed summarily. 28 U.S.C. § 2255(b).
principal claim is one of actual innocence. 'The [United
States] Supreme Court has never squarely held that actual
innocence is a viable independent collateral claim."
Higgs v. United States, 711 F.Supp.2d 479, 501 (D.
Md. 2010); see also Herrera v. Collins, 506 U.S.
390, 417, 113 S.Ct. 853 (1993) ("We may assume, for the
sake of argument in deciding this case, that in a capital
case a truly persuasive demonstration of 'actual
innocence" made after trial would render the execution
of a defendant unconstitutional, and warrant federal habeas
relief.. . ."); United States v. MacDonald, 32
F.Supp. 3d 608, 705-06 (E.D. N.C. 2014) (emphasis in
original) (footnote omitted) ("The United States Supreme
Court has never explicitly recognized a freestanding actual
innocence claim, although it has recognized (he
possibility of such a claim . . . ."). If any such
freestanding claim of actual innocence exists, however,
"the threshold showing would 'necessarily be
extraordinarily high.'" Higgs, 711
F.Supp.2d at 501 (quoting Herrera, 506 U.S. at 417);
see also Wilson v. Greene, 155 F.3d 396, 404 (4th
Cir. 1998) (citations omitted) ("[Freestanding] [c]laims
of actual innocence . . . should not be granted
casually."). Thus, to be entitled to relief, the United
States Court of Appeals for the Fourth Circuit has suggested
that a petitioner "would at the very least be required
to show that based on proffered newly discovered evidence and
the entire record before the jury that convicted him, 'no
rational trier of fact could [find] proof of guilt beyond a
reasonable doubt/" Hunt v. McDade, 205
F.3d 1333 (4th Cir. 2000) (unpublished) (quoting
Herrera, 506 U.S. at 429 (White, J., concurring)).
the evidence Petitioner has submitted in support of his
Motion to Vacate is wholly generic and speculative.
Petitioner contends that Roman has provided new information
and that, had Roman testified at Petitioner's trial, the
jury would have had reason to disbelieve Parades'
testimony. See ECF No. 790 at 4. But Roman's
vague assertions that other unspecified individuals "saw
the murder and can testify ... in court" that Petitioner
was not the one who committed the murder, ECF No. 775-3 at
2-3, are insufficient for Petitioner to satisfy his burden on
a freestanding claim of innocence. Additionally, although
Petitioner's private investigator indicates that
"[v]arious individuals with knowledge of this case . . .
speculate that [Petitioner] did not murder . . .
Montoya, " ECF No. 792-1 at 1 (emphasis added), such
speculation alone cannot support Petitioner's Motion to
Vacate. Petitioner has not presented any evidence that would
lead the Court to conclude that "'no rational trier
of fact could [find] proof of guilt beyond a reasonable
doubt.'" MacDonald, 32 F.Supp. 3d at 707
(quoting Hunt, 205 F.3d 1333).
extent Petition also seeks to raise a claim of ineffective
assistance of counsel, his Motion to Vacate still must be
denied. An ineffective assistance of counsel claim is
governed by the two-part test set forth in Strickland v.
Washington,466 U.S. 668, 104 S.Ct. 2052 (1984).
"Pursuant to that test, to prevail on an ineffective
assistance claim, a petitioner must establish that (1)
counsel's performance was deficient and (2) there is a
reasonable probability that the deficiency prejudiced the
defense." Merzbacher v.Shectrin, 706
F.3d 356, 363 (4th Cir. 2013) (citing Strickland,
466 U.S. at 687. 694). To establish that counsel's
performance was deficient, a petitioner "must show that
counsel's representation fell below an objective standard
of reasonableness." Id. (citing Strickland.
. 466 U.S. at 688). However, "[c]ourts 'indulge
a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance."
in order to avoid 'the distorting effects of
hindsight.'" Id. (quoting Yarbrough v.