United States District Court, D. Maryland
W. TITUS UNITED STATES DISTRICT JUDGE
seeks an evidentiary hearing and discovery to resolve issues
raised in his Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255. ECF No. 982. He argues
his counsel was ineffective in three respects: 1) in
permitting Petitioner to enter into a Plea Agreement
involuntarily and unknowingly by failing to seek a
continuance to allow them to fully explain the Plea Agreement
to him; 2) in failing to seek suppression of wiretap evidence
on the grounds that the Government found the wiretapped line
through the warrantless use of a cell site simulator; and 3)
in failing to object to a factual disparity between the
Indictment and Petitioner's presentence report.
2, 2012, Petitioner Anthony Marcantoni was charged in two
counts of a Second Superseding Indictment that brought
sixteen counts against ten defendants for their involvement
in a large drug conspiracy in Maryland. ECF No. 341. The two
counts naming Petitioner were: (1) Count One: distributing
and possessing with the intent to distribute 1, 000 kilograms
or more of a mixture or substance containing a detectable
amount of marijuana; and (2) Count Sixteen: distributing and
possessing with intent to distribute a mixture and substance
containing marijuana. ECF No. 341, at 2-6, 23. In his sworn
declaration, Petitioner stated, "From the outset, I
advised counsel that I had no interest in pleading guilty and
that I requested a trial." ECF No. 982-3, at 1 ¶ 3.
On June 22, 2012, Petitioner pleaded "Not Guilty"
on both counts. ECF No. 402. Petitioner was then on course to
participate in an eight-week trial scheduled to begin on
September 11, 2012. ECF No. 188.
August 30, 2012, Petitioner's counsel moved to suppress
evidence obtained and derived from a wiretap on "Line J,
" claiming the wiretap was unlawful. ECF No. 427. The
Court conducted a hearing regarding the Line J wiretap on
September 10, 2012, the day before the trial was scheduled to
commence and denied the motion. ECF No. 982-4, at 2¶9.
same day the Court denied Petitioner's motion to
suppress, the Government filed a notice pursuant to 21 U.S.C.
§ 851(a) that it would seek enhanced penalties against
Petitioner under 21 U.S.C. § 841. ECF No. 453. The
notice informed Petitioner that as a result of his prior
conviction,  he faced a mandatory minimum of twenty
years' imprisonment with at least ten years'
supervised release if the drug quantity was found to be 1,
000 kilograms or more. Id. If the drug quantity was
found to be less than 1, 000 kilograms but more than 100
kilograms, he faced a mandatory minimum under §
841(b)(1)(B) of ten years' imprisonment with at least
eight years' supervised release. Id.
morning trial was to commence, Petitioner received a plea
offer from the Government with a deadline of 9:00 AM that
morning. ECF No. 459. The Plea Agreement would allow
Petitioner to avoid the risk of a mandatory twenty-year
sentence. Id. The Stipulated Facts established the
quantity of marijuana as less than 1, 000 kilograms but more
than 700 kilograms. Id. With this quantity,
Petitioner would be subject to the ten-year mandatory minimum
sentence rather than the twenty-year minimum he would have
faced if the jury determined the quantity involved was 1, 000
kilograms or more at trial. Id.
time Petitioner’s counsel had received the written Plea
Agreement and presented it to Petitioner in his holding cell,
they had twenty minutes to explain to Petitioner the new
mandatory minimums he faced following the § 851 notice,
the provisions of the Plea Agreement, the Stipulated Facts
attached to it, and the legal requirements of Rule 11. ECF
No. 982-4, at 2-5 ¶¶ 15-38. Petitioner
“peppered” his counsel with questions regarding
these issues, causing his counsel to become concerned that he
“failed to appreciate all material elements of the Plea
Agreement.” Id. at 3 ¶¶ 20, 22.
These concerns notwithstanding, Petitioner’s counsel
believed the Plea Agreement to be “the most appropriate
disposition” for the Petitioner based on the denial of
the motion to suppress the Line J wiretap evidence,
they recommended he accept the offer and sign the Plea
Agreement. Id. at 4 ¶ 33. Petitioner signed the
Plea Agreement and attached Stipulated Facts, as did his
counsel. ECF No. 459, at 9. The Rule 11 proceeding commenced
at approximately 9:30 a.m. ECF No. 994-3, at 1.
Rule 11 proceeding, the Court asked Petitioner if he had read
the Plea Agreement and discussed its contents with his
attorneys. ECF No. 994-3, at 7. Petitioner answered that he
had. Id. The Court asked if he believed he
understood the provisions of the Plea Agreement, and
Petitioner said he did. Id. After affirming
Petitioner had affixed his signature to the Plea Agreement
and Stipulated Facts, the Court asked the Government to
summarize the essential provisions of the Plea Agreement to
“make sure nothing was overlooked” when
Petitioner read them. Id. at 8.
Government summarized the key provisions of the Plea
Agreement. Id. at 8-13. Under the Plea Agreement,
Petitioner agreed to plead “Guilty” to Count One
of the Second Superseding Indictment, with the factual
stipulation that the quantity of marijuana was between 700
and 1, 000 kilograms instead of the 1, 000 kilograms or more
as he was charged in the indictment. Id. at 9-10.
The Government agreed to dismiss the charges under Count
Sixteen of the Second Superseding Indictment. Id. at
11. Petitioner also agreed to forfeit a Rolex watch and $500,
000. Id. The Government summarized the waiver of his
rights to appeal and the other essential provisions in the
Plea Agreement. Id. at 12-13.
Court then asked Petitioner if he had any concerns or
misunderstood any aspect of the Plea Agreement as summarized
by the Government. Id. at 13. Petitioner said he
understood the description, but was confused about the length
of supervised release in relation to the § 851 Notice.
Id. The Court and the Government clarified why eight
years’ supervised release was the statutory minimum,
and Petitioner said he understood. Id. at 17.
Court asked if anybody had threatened or forced Petitioner to
plead guilty. Id. at 19. Petitioner responded,
“Just with the 20-year mandatory minimum. That’s
about it.” Id. The Court asked Petitioner if
anyone had made any threats “other than the prosecutor
promising to prosecute you, ” and the Petitioner said,
“No, Your Honor.” Id. The Court then
explained the mechanism of the Sentencing Guidelines and its
relation to the mandatory minimum sentence. Id. at
22-24. Petitioner said he understood this explanation.
Id. at 24. The Court explained the sentencing
process, describing the factors the Court must and will
consider at the time of Petitioner’s sentencing.
Id. at 25-26. Petitioner again verbally confirmed he
understood the Court’s explanation. Id. at 26.
The Court enumerated the rights Petitioner agreed to waive in
the Plea Agreement and asked if Petitioner understood those
rights and what the waiver of them meant. Id. at
26-30. Petitioner expressed his understanding of each of the
rights and the implications of waiving them. Id.
Court then asked the Government to present the Stipulated
Facts. Id. at 31. Following the Government’s
presentation of the Stipulated Facts, Petitioner said he did
not know some of the people listed in the Stipulated Facts as
his co-conspirators. Id. at 33-35. After the
Government insisted on the need for Petitioner to admit all
facts were true as stipulated, the Court called for a brief
recess to allow Petitioner to confer with his counsel.
Id. at 36. After returning, Petitioner said he felt
“like the Government is squeezing me to try to figure
out who I know and who I don’t know.”
Id. at 42. After a second recess, the Court asked
Petitioner to answer whether the people listed were his
co-conspirators, and Petitioner admitted that they were and
indicated he had no further objections to the Stipulated
Facts. Id. at 42. The Court asked if there was
anything about that day’s proceedings Petitioner did
not understand, and Petitioner responded, “No.”
Id. at 43. The Court then accepted
Petitioner’s guilty plea and the Plea Agreement and
scheduled his sentencing hearing. Id. at 45.
December 13, 2012, the Court sentenced Petitioner to 121
months’ imprisonment, eight years’ supervised
release, and a special assessment. ECF No. 619. Petitioner
filed a Notice of Appeal the following week. ECF No. 629. The
Fourth Circuit affirmed the conviction. United States v.
Marcantoni, 568 Fed.Appx. 229 (4th Cir. 2014); ECF No.
860. On June 22, 2015, the Court reduced Petitioner’s
sentence to 120 months’ imprisonment and 96
months’ supervised release based on a retroactively
lowered guideline sentencing range. ECF No. 973. Petitioner
filed this § 2255 Motion and supporting affidavits with
assistance of counsel on July 23, 2015. ECF No. 982. The
Government responded in opposition to the Motion on December
8, 2015. ECF No. 994. Petitioner filed his Reply on December
21, 2015 then later filed Notices of Supplemental Authority
on March 16, 2016 and April 5, 2016.ECF Nos. 996, 1017, 1019.
28 U.S.C. § 2255, a prisoner in custody may move the
court to vacate, set aside, or correct a sentence if he can
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, or is
otherwise subject to collateral attack.” 28 U.S.C.
§ 2255; Miller v. United States, 261 F.2d 546,
547 (4th Cir. 1958). The claim must show a “fundamental
defect which inherently results in a complete miscarriage of
justice” or “an omission inconsistent with the
rudimentary demand of fair procedure.” Hill v.
United States, 368 U.S. 424, 428 (1962). If the §
2255 motion, along with the files and records of the case,
“conclusively show that [he] is entitled to no relief,
” a hearing on the motion is unnecessary and the claims
raised in the motion may be dismissed summarily.
Miller, 261 F.2d at 547.
initial matter, Petitioner procedurally defaulted his claims
that do not sound in ineffective assistance of counsel. The
remaining claims amount to three arguments, claiming counsel
was ineffective for: 1) not seeking a continuance before
accepting the Plea Agreement, resulting in Petitioner
entering into the Plea Agreement involuntarily and
unknowingly; 2) failing, because of a conflict of interest,
to seek suppression of the Line J wiretap evidence on the
grounds that the line was discovered through warrantless use
of a cell site simulator device; and 3) failing to object to
“materially inaccurate” information in the Plea
Agreement and Presentence Report (“PSR”). ECF
Nos. 982-1, 996. For the reasons that follow,
Petitioner’s arguments fail.
All claims unrelated to ineffective assistance of counsel