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Thomas v. United States

United States District Court, D. Maryland

September 26, 2016

VICTOR THOMAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil Action No. RDB-14-2085

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge.

         The pro se Petitioner Victor Thomas (“Petitioner” or “Thomas”) has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 507). In support of this Motion, Petitioner argues that his trial and appellate attorneys rendered ineffective assistance of counsel, in violation of his rights under the Sixth Amendment to the United States Constitution, U.S. Const. amend. VI.

         Currently pending before this Court are Petitioner's Motion to Vacate (ECF No. 507), Amended Motion to Vacate (ECF No. 519), [1] and Motion for Sentencing Transcripts in Forma Pauperis (ECF No. 445). Having reviewed the parties' submissions, this Court finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, Petitioner's Motion to Vacate (ECF No. 507) is DENIED; Petitioner's Amended Motion to Vacate (ECF No. 519) is DENIED; and Petitioner's Motion for Sentencing Transcripts in Forma Pauperis (ECF No. 445) is MOOT.[2]

         BACKGROUND

         In 2010, the Harford County Narcotics Task Force (“HCNTF”) investigated a drug-distribution ring[3] which led to the arrest of Petitioner and Michael White (“White”). State v. White, 519 F. App'x 797, 799 (4th Cir. 2013). The investigation effort included the authorized wiretap of a cell phone number connected to Thomas and the interception of nearly two thousand phone calls associated with Thomas' number. Id. Following their arrests, Thomas and White were both charged with conspiracy to distribute and possess cocaine and cocaine base with intent to distribute the same, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (ECF No. 1). Additionally, Thomas was charged with violating 18 U.S.C. § 922(g)(1), felon in possession of a firearm.[4]

         Following a five-day trial, a jury convicted Petitioner on the conspiracy charge, but the jury was hung with respect to his gun possession charge. Jury Verdict, 1-2, ECF No. 324. This Court subsequently sentenced Thomas to 120 months imprisonment and 8 years supervised release. J., 2-3, ECF No. 433.

         Thomas and White appealed their convictions to the United States Court of Appeals for the Fourth Circuit, contending that this Court erred in permitting Detective Brandon Underhill (“Underhill”) to testify as an expert witness without explaining the methodology he employed to decipher drug jargon, as well as failing to adopt adequate safeguards to avoid jury confusion given Underhill's testimony as both a fact and expert witness.[5] White, 519 F. App'x at 806-09. The Fourth Circuit noted that this Court had erred by failing to employ methods to help jurors understand that Underhill's lay testimony did not merit additional weight simply because he also testified as an expert. Id. at 809. Nevertheless, the Fourth Circuit rejected Thomas and White's arguments, explaining that any error by this Court was neither “obvious” nor “affect[ed] substantial rights.” Id. Accordingly, the Fourth Circuit affirmed the jury verdict on all counts. Id. at 811. Thomas subsequently filed the pending Motion to Vacate (ECF No. 507) and Amended Motion to Vacate (ECF No. 519) pursuant to 28 U.S.C. § 2255. In these Motions, Thomas argues that both his trial and appellate attorneys provided ineffective assistance of counsel, in violation of his Sixth Amendment right to counsel.

         STANDARD OF REVIEW

         Documents filed pro se are “liberally construed” and are “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside or correct his sentence where (1) “the sentence was imposed in violation of the Constitution or laws of the United States, ” (2) the court lacked “jurisdiction to impose the sentence, . . . [(3)] the sentence was in excess of the maximum authorized by law, or [(4) the sentence] is otherwise subject to a collateral attack.” 28 U.S.C. § 2255. “[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

         ANALYSIS

         Petitioner presents numerous grounds on which his appellate and trial attorneys provided ineffective assistance of counsel. Specifically, he contends that his trial counsel failed to: (1) object to the qualifications of the Government's expert witness, Brandon Underhill, as well as the manner in which he presented lay and expert testimony; (2) object to the jury instructions on various grounds; (3) object to the enhanced sentence imposed by the Court; (4) seek a plea offer from the Government; (5) inform him of his right to testify at trial; and (6) obtain Petitioner's consent prior to informing the jury in his opening statement that Petitioner was “guilty” of distribution. With respect to appellate counsel, Petitioner argues that counsel failed to: (1) raise certain issues on appeal; (2) seek a rehearing or an en banc hearing in the Fourth Circuit; and (3) file a writ of certiorari with the United States Supreme Court.

         In order to establish a claim for ineffective assistance of counsel, Petitioner must satisfy the two-pronged test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 671 (1984). First, Petitioner must show that his counsel's performance was so deficient as to fall below an “objective standard of reasonableness.” Id. at 688. In assessing whether counsel's performance was unconstitutionally deficient, courts adopt a “strong presumption” that an attorney's actions fall within the “wide range of reasonable professional assistance.” Id. at 689. Second, Petitioner must show that his counsel's performance was so prejudicial as to “deprive the defendant of a fair trial.” Id. at 687. In order to establish this level of prejudice, Petitioner must demonstrate that there is a “reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding[s] would have been different.” Id. at 694. Satisfying either of these two prongs alone is not sufficient; rather, Petitioner must meet both prongs of the Strickland test to obtain relief. Id. at 687.

         This Court first addresses Petitioner's claims against trial counsel, and then turns to his claims against appellate counsel.

         I. Trial Counsel

         Petitioner argues that he received ineffective assistance of counsel at his trial. Specifically, he contends that his trial counsel failed to: (1) object to the qualifications of the Government's expert witness, Brandon Underhill, and Underhill's ensuing presentation of lay and expert testimony; (2) object to the jury instructions on various grounds; (3) object to the enhanced sentence imposed by the Court; (4) seek a plea offer from the Government; (5) inform him of his right to testify at trial; and (6) secure consent from Petitioner prior to using the term “guilty” in his opening statement. For the reasons that follow, all of these claims are meritless.

         A. Failure to Object to Testimony of the Government's Expert Witness

         Thomas claims that trial counsel was ineffective for failing to object to Underhill's qualification as an expert. Mot. to Vacate, p.11, ECF No. 507. He also argues that his trial counsel acted unreasonably by failing to “object to Detective Underhill['s] testimony as both an expert and fact witness during trial.” Am. Mot. to Vacate, p.8, ECF 519. In support of these claims, Petitioner likens Underhill's testimony to that of the Government's expert witness in United States v. Garcia, 752 F.3d 382 (4th Cir. 2014), where the Fourth Circuit vacated a defendant's conspiracy conviction because the district court failed to adopt adequate “safeguards to protect the jury from conflating [the expert's] testimony as an expert and fact witness.” 752 F.3d at 391-92 (noting that, “Agent Dayton's testimony was so extensive and most likely highly influential in the jury's evaluation of the Government's case against Garcia, we are constrained to hold that these flaws deprived [the defendant] of a fair trial”).

         Raising an objection is a tactical decision. Sexton v. French, 163 F.3d 874, 885 (4th Cir. 1998). As this Court has repeatedly held, courts grant “substantial deference” to the tactical decisions of defense attorneys when reviewing ineffective assistance of counsel claims. Sterling v. United States, Civ. No. RDB 11-3209, 2013 WL 588973, at *5 (D. Md. Feb. 13, 2013). Indeed, the failure to object can only be deemed constitutionally ineffective if the objection was “so obvious that it would have ‘struck those learned in the law like a bucket of ice water.'” Higgs v. United States, 711 F.Supp.2d 479, 532 (D. Md. 2010) (quoting Humphries v. Ozmint, 366 F.3d at 276 (4th Cir. 2004)).

         In this case, trial counsel's decision not to object to Mr. Underhill's qualification as an expert was a tactical decision, not ineffective assistance of counsel. Given Underhill's extensive drug enforcement experience, including his review of “between 10, 000 and 15, 000 drug-related conversations, ” Gov't Response, p. 9, ECF 543, counsel made a strategic decision not to re-examine Underhill's expertise.[6] See Garcia, 752 F.3d at 391 (specifying that, “it is the quality of Agent['s] experience, especially [their] exclusive focus on narcotics trafficking . . . which [ ] district court[s]” focus on when determining if a drug “decoding” expert is qualified). Indeed, “courts of appeals [sic] have routinely held that law enforcement officers with extensive drug experience are qualified to give expert testimony on the meaning of drug-related code words.” United States v. Wilson, 484 F.3d 267, 275 (4th Cir. 2007). Any additional questioning was thus unnecessary.

         Likewise, trial counsel's decision to withhold objections to the manner in which Underhill presented fact and expert opinion testimony was not “objectively unreasonable.” Although the Fourth Circuit held that this Court erred by failing to adopt adequate safeguards to prevent jury confusion regarding Underhill's dual role as fact and expert witness, it also held that such an error was neither “obvious” nor “affect[ed] substantial rights.” White, 519 F. App'x at 809. Accordingly, unlike the defendant in Garcia, Petitioner still received a fair trial.[7] Id. Thus, although cases like Garcia, decided over two years after Petitioner's trial, emphasize the need for courts to adopt adequate safeguards to prevent jury confusion between fact and expert testimony, trial counsel's failure to object on this issue was not so obviously erroneous or unreasonable as to be constitutionally ineffective.

         Even assuming that trial counsel's actions established inadequate safeguards for jurors to distinguish between Underhill's fact and expert witness testimony, Thomas fails to demonstrate any resulting prejudice. He simply asserts that “had the agents [sic] testimony been excluded, [sic] the Petitioner would not have been convicted . . . [because the case was] developed and solely built on wiretap evidence only” and that “had counsel moved to object to the agent doubling up as a fact witness and as an expert, the trial Court would have been forced to make a legal decision.” Am. Mot. to Vacate, p. 8-9, ECF No. 519. Under Strickland, Petitioner bears the burden of demonstrating a reasonable probability that the trial result would have been different had his counsel objected to the form in which Underhill's testimony was presented. “Conclusory allegations, ” however, do not sustain this burden. United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)). Absent any additional evidence beyond these conclusory allegations, Petitioner has failed to meet his burden. Thomas failed to demonstrate any prejudice on direct appeal, and he has not offered any new arguments to obtain a different result on collateral review.

         B. Failure to Object to Jury Instructions

         Petitioner next contends that trial counsel was ineffective for failing to object to the jury instructions presented at trial. He cites three main defects in these instructions. First, he argues that “trial counsel was ineffective in failing to object to and challenge the disparity of drug quantities . . . represented by the indictment and the District Court's jury instructions.” Mot. to Vacate, p. 17, ECF No. 507. Second, Petitioner argues that the jury instructions induced the jury “to accredit Agent Underhill as having possessed a specialized expert training for deciphering common language used in telephone conversations to be drug codes that serve transactions.” Id. at 17-18. Finally, the instructions omitted “requisite Pinkerton principles of jury fact-finding [sic] for each individual alleged co-conspirator.” Id. at 20. Specifically, Petitioner contends that this Court “failed to instruct the jury that in establishing the threshold drug quantities . . . it must, pursuant to Pinkerton, [8] determine the quantity attributable to each co-conspirator.” Id. at 21.

         Once again, it is well-established that trial counsels' decisions not to object are tactical ones warranting deference. See United States v. Fleming Macon Pleasants, 71 F. App'x 182, 185 (4th Cir. 2003) (“Counsel made the tactical decision not to object. We cannot conclude that counsel made an error so serious that he was not functioning as the counsel required by the Sixth Amendment.”); Richardson v. United States, Crim. No. RDB-05-0597, 2015 WL 5736010, at *8 (D. Md. Sept. 28, 2015) (“The decision whether or not to object to certain evidence falls squarely within the trial strategy category.”).

         In this case, any alleged disparity of drug quantities did not form a reasonable basis for an objection. The indictment alleged that Petitioner conspired to distribute and possess “5 grams or more” of crack cocaine. Indictment, p.3, ECF No.1 (emphasis added). An August 3, 2010 Amendment to 21 U.S.C. § 841, issued just prior to the indictment of August 11, 2010, raised the requirements for imposing certain penalties on offenders with violations involving “5 grams” to those involving “28 grams” of crack cocaine as indicated in Section 841(b)(1)(B)(iii). The parties agreed to have the verdict sheet reflect the recent amendment by asking the jury to place a check mark next to the words “28 grams or more” if they found Petitioner guilty of that amount. Resp. in Opp'n Ex. 5, ECF No. 543-5; Jury Verdict at 1, ECF No. 324. This is not a “disparity, ” but a means of allowing the jury to indicate how much crack cocaine it believed Petitioner had conspired to distribute and possess. Because the jury found that Petitioner's conspiracy involved 28 grams or more, it necessarily also found that the conspiracy involved 5 grams or more. Any objection would thus be groundless.

         With regards to Thomas's second argument, it is unclear how the jury instructions misled the jury about Underhill's credentials as alleged. When this Court qualified Underhill to testify as an expert, it cautioned the jury that “[a]s with all witness[es], [it was] up to [them] to accept or reject [Underhill's] testimony.” ...


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