United States District Court, D. Maryland
J. HAZEL, 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, 2010, 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 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
safety 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 the
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
"Harious 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. Shearin,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. Johnson,5 ...