United States District Court, D. Maryland
Lipton Hollander United States District Judge
Memorandum resolves a motion filed by Maurice Hardy pursuant
to 28 U.S.C. § 2255 (ECF 440), which is supported by a
memorandum. ECF 440-1 (collectively, the
“Petition”). Hardy is self-represented.
2013, pursuant to a plea agreement (the “Plea
Agreement”), Hardy entered a plea of guilty to
conspiracy to distribute and possession with intent to
distribute one kilogram of heroin, five kilograms or more of
cocaine, and a quantity of cocaine base, in violation of 21
U.S.C. § 846. See ECF 306; ECF 309; see
also ECF 447-3. The Plea Agreement (ECF 309; ECF 447-3)
reflects that Hardy's plea was entered pursuant to Fed.
R. Crim. P. 11(c)(1)(C) (id. ¶ 5), in which the
parties agreed to a sentence of 16 years' imprisonment
(192 months). Id. ¶ 10. Consistent with the
“C plea, ” Hardy was sentenced on May 14, 2013,
to a term of imprisonment of 192 months. ECF 334; ECF 335;
filed his Petition in November 2014. In particular, Hardy
argues that he received ineffective assistance of counsel
from the two attorneys who represented him at various times.
ECF 440; ECF 440-1. The government filed a response in
opposition (ECF 447, “Opposition”), accompanied
by six exhibits. ECF 447-1 through ECF 447-6. Hardy did not
reply, and the time to do so has expired. See Local
28 U.S.C. § 2255(b), a hearing is required
“[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief . . . .” This is such a case; no hearing is
necessary. For the reasons that follow, I shall deny the
Factual and Procedural Background
Superseding Indictment filed on September 14, 2011 (ECF 44),
Hardy and eight others were charged, inter alia,
with conspiracy to distribute and possession with intent to
distribute one kilogram or more of heroin, five kilograms or
more of cocaine, and a quantity of cocaine base, in violation
of 21 U.S.C. § 841(a)(1). Id. On September 20,
2011, Hardy and his retained lawyer, David Henninger, engaged
in a “reverse proffer” session with the
government, at which the government summarized its evidence
against Hardy. ECF 447 at 2. According to the government,
that evidence included intercepted telephone calls and text
messages from two of Hardy's telephones as well as 1.027
kilograms of cocaine seized from Hardy's vehicle
following a traffic stop on June 29, 2011. Id. In
addition, a loaded firearm was recovered from Hardy's
residence. See ECF 309 at 12. The government also
disclosed information that Hardy was responsible for the
shooting of an associate. ECF 447 at 3.
plea negotiations “broke down.” Id. On
August 20, 2012, Henninger filed a “Motion to Strike
Appearance.” ECF 230. He said, in relevant part,
id.: “Per the request of the defendant, please
strike the appearance of David P. Henninger, Esquire, as
counsel in the above caption[ed] case. The defendant [h]as
notified this office his has [sic] already sought alternative
counsel to represent him in the above caption case.”
Thereafter, by Order of August 20, 2016 (ECF 232), I referred
the “Motion to Strike Appearance” (ECF 230) to a
magistrate judge to conduct an attorney inquiry hearing.
See ECF 231.
attorney inquiry hearing was held on August 21, 2012.
See ECF 250 at 1. By Order of August 21, 2016 (ECF
233), then Magistrate Judge Paul Grimm granted the
“Motion to Strike Appearance” (ECF 230),
contingent upon the entry of a new attorney for Hardy.
However, Hardy did not retain new counsel. Therefore, in a
letter to counsel of November 30, 2012 (ECF 257), I indicated
that a second attorney inquiry hearing was warranted. And, on
December 5, 2012, Henninger filed a second “Motion to
Strike Appearance.” ECF 259. It stated, in relevant
part, id. at 1:
request of the Defendant, please strike the appearance of
David P. Henninger, Esquire, as counsel in the above
caption[ed] case and for reason says:
1. The Defendant has been represented by this office for more
than a year. This office engaged in very fruitful
negotiations, early on in this case. The defendant was
unhappy with the representation when he learned of a possible
2. That the Defendant has refused to cooperate with counsel
over the last six (6) months, and all efforts to cooperate on
counsel's part have been futile.
3. The Defendant is receiving legal advice from the Inner
City Legal Services, out of Baltimore City, who are not
lawyers and do not understand the Defendant's case nor
the law. At his time said organization is under investigation
by the Baltimore City State's Attorney's Office for
practicing without a license.
4. Any further efforts to represent the Defendant are not
likely to be productive, and his right to a trial counsel of
his choice has been seriously jeopardized.
5. This office has referred the Defendant to Donna Shearer
for appointment for counsel, and has yet to return the
petition for counsel to Ms. Shearer.
Order of December 5, 2012 (ECF 261), the case was referred to
Magistrate Judge Gesner for a second attorney inquiry
hearing. By Order of December 13, 2012 (ECF 264), Judge
Gesner granted the second “Motion to Strike
Appearance.” ECF 259. Soon after, Thomas Saunders, a
panel attorney under the Criminal Justice Act
(“CJA”), was appointed to represent Hardy.
See ECF 265; ECF 271.
the next three months, Saunders negotiated the Plea Agreement
with the government on behalf of Hardy. ECF 447 at 4;
see ECF 309; ECF 447-3. Pursuant to that Plea
Agreement (ECF 309), Hardy tendered a plea of guilty on March
19, 2013, to Count 1 of the Superseding Indictment, under
Fed. R. Crim. P. 11(c)(1)(C). Id. The Plea Agreement
included as “Attachment A” a lengthy factual
stipulation. Id. at 9-12. The factual stipulation
set forth, inter alia, Hardy's narcotics
transactions with his co-defendants; that law enforcement
officers recovered a loaded 9mm Glock pistol and 9mm
ammunition from Hardy's residence; and that Hardy and his
co-conspirators distributed more than 15 kilograms of
cocaine, more than a kilogram of heroin, and a quantity of
cocaine base, and this conduct was foreseeable to Hardy.
Id. at 9-12. In addition, the stipulation provided
that during June 2011, Hardy discussed on the telephone the
shooting at a vehicle in Salisbury, Maryland. Id. at
3 of the Plea Agreement set forth the maximum possible
penalties for the offense in issue. The offense to which
Hardy pleaded guilty carried a mandatory minimum term of
imprisonment of ten years and a maximum term of life
Plea Agreement, Hardy and the government stipulated that
“a sentence of imprisonment of 16 years is the
appropriate disposition of this case.” Id.
¶ 10 (bold in original). The parties also stipulated to
the calculation of Hardy's offense level under the United
States Sentencing Guidelines (“U.S.S.G.”). Under
U.S.S.G. § 2D1.1(c)(3), they agreed that Hardy's
base offense level was 34, based on the quantity of
narcotics. Id. ¶ 7. Two levels were added under
U.S.S.G. § 2D1.1(b)(1), because of Hardy's
possession of a dangerous weapon in connection with the
conspiracy. Id. And, Hardy earned three deductions
for acceptance of responsibility. Id. See U.S.S.G.
§§ 3E1.1(a), (b). Thus, Hardy had an anticipated
final offense level of 33. However, there was no agreement as
to Hardy's criminal history. See ECF 309, ¶
9; ECF 447-3, ¶ 9.
rearraignment, the government made an oral presentation of
the stipulated facts, in which it recounted, inter
alia, defendant's involvement in the shooting at a
vehicle. See ECF 397 (guilty plea transcript) at
33-34. Hardy, who was under oath (id. at 3), was
asked if he had any dispute with the factual summary.
Id. at 34. He indicated that he did not dispute the
factual summary and acknowledged that it was accurate.
Presentence Report (ECF 324) reflected that Hardy had a
criminal history category of V. See Id. ¶ 48.
With a final offense level of 33 and a criminal history
category of V, Hardy had an advisory sentencing guidelines
range of 210 to 262 months' incarceration.
the shooting referenced in the stipulation of facts contained
in the Plea Agreement, and recounted at the rearraignment,
was not included in the agreed-upon calculation of
Hardy's adjusted offense level under the sentencing
guidelines. Had the shooting been incorporated, the
government could have pursued an additional two-level
enhancement under U.S.S.G. § 2D1.1(b)(2), on the ground
that Hardy used or directed the use of violence. If this
enhancement applied, Hardy's final adjusted offense level
would have been 35, not 33. And, this would have resulted in
an applicable guidelines sentencing range of 262-327
months' imprisonment, assuming a Criminal History
Category of V, as found at sentencing.
the C plea of 16 years (i.e., 192 months) was 18
months below the bottom of the advisory guidelines range and
70 months below that top of the range. And, it was well below
the advisory sentencing range of 262 to 327 months'
imprisonment, which would have applied if the shooting
incident had been included in the calculation of the offense
sentencing, Hardy noted an appeal to the Fourth Circuit.
See ECF 357; ECF 358; ECF 362; ECF 363. The Fourth
Circuit dismissed Hardy's appeal as to his sentence,
based on a valid appellate waiver. See United States v.
Hardy, 555 Fed.App'x 272 (4th Cir. 2014) (per
curiam) (ECF 413). But, the Court determined that the waiver
did not extend to the issue of the voluntariness of his
guilty plea. Id. at 273. Nevertheless, it concluded
that “[t]he district court fully complied with Rule 11
when accepting Hardy's plea and ensured that the plea was
knowing and voluntary and, therefore, final and