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Hardy v. United States

United States District Court, D. Maryland

September 16, 2016

MAURICE HARDY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. ELH-11-358

          MEMORANDUM

          Ellen Lipton Hollander United States District Judge

         This 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.

         In 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; ECF 349.

         Hardy 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.[1] Hardy did not reply, and the time to do so has expired. See Local Rule 105.2.[2]

         Under 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 Petition.

         I. Factual and Procedural Background

         In a Superseding Indictment filed on September 14, 2011 (ECF 44), [3] 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.[4] The government also disclosed information that Hardy was responsible for the shooting of an associate. ECF 447 at 3.

         Eventually, 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.

         An 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:

         Per the 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 homicide charge.
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.[5]

         By 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.

         Over 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 12.

         Paragraph 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 imprisonment. Id.

         In the 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.

         At the 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. Id.

         The 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.

         Notably, 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.

         Thus, 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 level.

         After 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 ...


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