United States District Court, D. Maryland
George's County, Maryland, Movant, represented by
Dorianne Avery Meloy, Office of the Attorney General.
Mirriam Seddiq, Interested Party, represented by Mirriam Z.
Seddiq, Law Office of Mirriam Z Seddiq.
Charles L. Mayhew, Interested Party, Pro Se.
Plaintiff, represented by Adam Kenneth Ake, Office of the
United States Attorney, Stacy Dawson Belf, Office of the
United States Attorney & Hans Miller, U.S. Dept of Justice.
DEBORAH K. CHASANOW, District Judge.
pending and ready for resolution in this case is a motion
filed by Petitioner Jacinto Bracmort ("Petitioner")
to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. Â§ 2255 (ECF No. 406). Also pending are
Petitioner's two motions to appoint counsel (ECF Nos.
407; 420), motion for reconsideration to obtain court
documents (ECF No. 405), motion to receive a copy of the
docket (ECF No. 436), and motion to expedite response (ECF
No. 437). The issues have been briefed, and the court now
rules, no hearing being deemed necessary. Local Rule 105.6.
For the following reasons, the motion to vacate, set aside,
or correct sentence will be denied; the motions to appoint
counsel will be denied; the motion for reconsideration to
obtain court documents will be denied; the motion to receive
a copy of the docket will be granted; and the motion to
expedite response will be denied as moot.
was charged with one count of conspiracy to distribute and
possess with intent to distribute 280 grams or more of
cocaine base, a quantity of a mixture or substance containing
a detectable amount of cocaine, and 100 grams or more of
phencyclidine ("PCP"), in violation of 21 U.S.C. Â§
846. (ECF No. 256) (second superseding indictment). The first
superseding indictment, charging Petitioner and five
co-defendants with conspiracy to distribute cocaine base and
PCP between October 2009 and May 2010, was returned on June
2, 2010. (ECF No. 24). A bench warrant was issued for
Petitioner (ECF No. 35), who was arrested and presented for
an initial appearance on July 2, 2010 (ECF No. 67). Due to
Petitioner's health issues, a renewed initial appearance
and detention hearing was held on July 6, at which he was
ordered detained by agreement. (ECF Nos. 72; 74). On August
29, 2011, following a five-day trial, a federal jury
convicted Petitioner of one count of conspiracy to distribute
controlled substances in violation of 21 U.S.C. Â§ 846. (ECF
No. 291). The jury found that less than 28 grams of cocaine
base and less than 100 grams of PCP were attributable to
Petitioner. ( Id. ). Petitioner was sentenced to 120
months of imprisonment followed by five years of supervised
release, the bottom of the sentencing guideline
range. (ECF No. 359). Judgment was entered on
April 24, 2012. (ECF No. 359).
informed the court during his sentencing hearing of the
errors he wished to raise regarding his conviction and
sentencing, and accordingly, notice of appeal was sent to the
United States Court of Appeals for the Fourth Circuit on
April 25, 2012. (ECF Nos. 361; 362). On appeal, Petitioner
district court abused its discretion in denying his request
for a jury instruction on multiple conspiracies; and (2) the
district court erred in failing to make specific factual
findings regarding the drug quantities attributable to him
for sentencing purposes. On December 13, 2012, the Fourth
Circuit affirmed on all grounds, concluding "that the
evidence adduced at trial established that Bracmort,
cooperating witness Ricky Moore, and co-defendant Rico
Toliver were part of a loosely-knit association of members
linked only by their mutual interest in sustaining the
overall enterprise of catering to the ultimate demands of a
particular drug consumption market[, ]'" and
therefore "the district court did not abuse its
discretion in denying defense counsel's request to
instruct the jury on multiple conspiracies." United
States v. Bracmort, 499 F.Appx. 261, 262-63 (4th Cir.
2012) (quoting United States v. Banks, 10 F.3d 1044,
1054 (4th Cir. 1993)) (ECF No. 393-2). The Fourth Circuit
also concluded that the district court's reliance on the
presentence report to support the factual finding of drug
quantities relevant for sentencing did not constitute plain
error, and that the court was not obligated to make express
factual findings because the attributable drug quantities
were greater than those found by the jury. Id. at
263-64. Following his direct appeal, Petitioner filed a
handwritten motion "to dismiss the case [due] to the 180
rule." (ECF No. 394). Construing the motion as a motion
for modification of sentence, the district court denied the
motion (ECF No. 399), and instructed the clerk to provide
forms and instructions for Petitioner to file a motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. Â§ 2255.
has been represented by six attorneys. Court-appointed
attorney William Arnold Mitchell, Jr. represented Petitioner
at his renewed initial appearance and detention hearing, but
moved to withdraw shortly thereafter due to a conflict of
interest with his representation of other clients, of which
he learned upon reviewing the initial discovery in
Petitioner's case. (ECF No. 80). Following an attorney
inquiry hearing before Magistrate Judge William Connelly (ECF
No. 81), Mr. Mitchell's motion was granted (ECF No. 89),
and Pat M. Woodward was appointed (ECF No. 83). Mr. Woodward
served as Petitioner's counsel for approximately five
months, during which time Petitioner twice asked the court to
remove Mr. Woodward as his counsel. (ECF Nos. 109; 112).
Petitioner withdrew his first motion during an attorney
appointment hearing. (ECF No. 110). Petitioner later renewed
his motion, stating that Mr. Woodward did not communicate
with Petitioner or his wife in a timely manner and that
Petitioner did not feel comfortable with his representation.
(ECF No. 112). In December 2010, Mr. Woodward was removed and
Joseph Roll Conte was appointed. (ECF No. 127).
Conte served as Petitioner's counsel through the jury
trial. Petitioner made multiple requests to have Mr. Conte
removed as his attorney, alleging that Mr. Conte pressured
him to accept a plea agreement and did not provide Petitioner
with a copy of the discovery, allow him to review the
wiretaps, or adequately communicate with him about his case.
( See, e.g., ECF No. 172). Four attorney inquiry
hearings were held before Magistrate Judge Charles B. Day
prior to trial to address Petitioner's requests, at each
of which Judge Day determined that it was not necessary to
replace counsel. (ECF Nos. 165; 174; 188; 249). Shortly
before trial began, Charles Jay Soschin entered his
appearance to join Mr. Conte as trial counsel. (ECF No. 269).
week after the jury verdict, Petitioner and co-defendant Rico
Toliver, without the assistance of counsel, filed a
"Notice to File Motion for New Trial." (ECF No.
298). Because the co-defendants were represented, they were
instructed to file any motion through their attorneys. (ECF
No. 300). Petitioner and Mr. Toliver responded: "[O]ur
attorneys will not file what we want them to file.... Neither
of them came to visit us until after the 14 days had
expired.... Mr. Conte did not visit Mr. Bracmort at
all." (ECF No. 308). Petitioner simultaneously filed a
motion for a new trial and a motion to appoint counsel, and
later again requested new counsel through correspondence to
the court. (ECF Nos. 309; 310; 322). Judge Connelly
granted Petitioner's motion to appoint counsel after a
hearing, and appointed Teresa Whalen. (ECF Nos. 323). Prior
to his sentencing, Petitioner attempted to have Ms. Whalen
removed, and an attorney inquiry hearing was held before
Judge Connelly. (ECF No. 354). Judge Connelly declined to
appoint new counsel. Petitioner also made an oral motion to
strike Ms. Whalen as his counsel during his sentencing
hearing, which was denied. (ECF No. 357). The court cited
Judge Connelly's determination that there was no
justification for replacing Ms. Whalen as Petitioner's
attorney, and further noted that the record did not indicate
that Ms. Whalen had failed to do anything that she
appropriately should have done on Petitioner's behalf.
(ECF No. 386, at 22-25). Finally, the Fourth Circuit
appointed Joshua Treem as counsel for Petitioner's
appeal. (ECF No. 364).
filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. Â§ 2255 on May 1, 2013. (ECF No. 406).
The government opposed (ECF No. 410), and Petitioner filed a
reply (ECF No. 413), and an addendum (ECF No. 415).
Petitioner has also filed two motions to appoint counsel (ECF
Nos. 407; 420),  a motion for reconsideration to obtain
court documents after an earlier motion to obtain his trial
and sentencing transcripts was denied (ECF No. 405), and a
motion to receive a copy of the docket for his case (ECF No.
436). Finally, Petitioner filed a motion to expedite a
response to the pending motions. (ECF No. 437).
Standard of Review
2255 requires a petitioner asserting constitutional error to
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. Â§ 2255(a). If the Â§ 2255 motion, along with the files
and records of the case, conclusively shows that the
petitioner is not entitled to relief, a hearing on the motion
is unnecessary and the claims raised in the motion may be
summarily denied. See id. Â§ 2255(b).
brings the instant Â§ 2255 motion alleging that he was denied
effective assistance of counsel in violation of the Sixth
Amendment and that the court erred in refusing to instruct
the jury on multiple conspiracies. (ECF No. 406).
Ineffective Assistance of Counsel
court understands Petitioner's motion to allege
ineffective assistance of counsel on the following grounds:
(1) the appointment of multiple attorneys in his case was
per se prejudicial, and all of his attorneys failed
to investigate his case, prepare for trial, or otherwise
subject the case to meaningful adversarial testing; (2)
Petitioner's attorneys failed to negotiate or communicate
a plea offer; (3) Petitioner's trial attorneys were not
licensed to practice law in this court; (4) Petitioner was
denied his right to testify, and his trial attorneys erred in
not calling his character witnesses to testify; and (5)
Petitioner's attorneys at sentencing and on appeal were
ineffective. ( See ECF No. 406-1).
of ineffective assistance of counsel are governed by the
well-settled standard adopted by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668
(1984). To prevail on a Strickland claim, the
petitioner must show both that his attorney's performance
fell below an objective standard of reasonableness and that
he suffered actual prejudice. See
Strickland, 466 U.S. at 688.
is a strong presumption that counsel's conduct falls
within a wide range of reasonably professional conduct, and
courts must be highly deferential in scrutinizing
counsel's performance. Strickland, 466 U.S. at
688-89; Bunch v. Thompson, 949 F.2d 1354, 1363 (4th
Cir. 1991). Courts must assess the reasonableness of attorney
conduct "as of the time their actions occurred, not the
conduct's consequences after the fact." Frye v.
Lee, 235 F.3d 897, 906 (4th Cir. 2000). "A fair
assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time." Strickland, 466 U.S.
at 689. Furthermore, a determination need not be made
concerning the attorney's performance if it is clear that
no prejudice could have resulted from some performance
deficiency. See id. at 697. To demonstrate actual
prejudice, Petitioner must show that there is a
"reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 694.
Multiple Attorneys and Pre-Trial Defense
first argues that having multiple attorneys throughout the
proceedings was "highly unusual, " and that
"[w]ith a new attorney assigned to the Petitioner at
every turn of the case, " it was "impossible"
for him to be competently represented. (ECF No. 406-1, at
11-12). Petitioner relies on United States v.
Cronic, 466 U.S. 648 (1984), asserting that the number
of attorneys he was appointed was effectively a denial of
counsel. ( Id. at 16). Representation by different
attorneys during the pre-trial and trial, post-trial, and
appellate phases of a case is not per se
prejudicial. One of Petitioner's attorneys was replaced
due to a conflict of interest, but the others were all
replaced at Petitioner's own request. A criminal
defendant cannot make repeated requests for new counsel in
order to then use the granting of those requests as the sole
basis for a collateral attack on his conviction. Moreover,
although the number of attorneys appearing in this case may
appear high, there was continuity in Petitioner's
representation. Mr. Mitchell and Mr. Woodward represented
Petitioner for brief periods of time at the beginning of his
case. It was Mr. Conte, however, who represented Petitioner
for more than ten months, through plea negotiations,
pre-trial motions,  and trial. Mr. Soschin appeared on
Petitioner's behalf only with Mr. Conte as additional
trial counsel. Ms. Whalen represented Petitioner for the six
months following the trial through sentencing, and Mr. Treem
was Petitioner's only appellate counsel. Petitioner has
not shown any errors or prejudice that resulted merely from
the replacement of his attorneys at his request.
further argues that his attorneys failed to investigate his
case or prepare for trial, alternatively attributing this
failure to the lack of continuity in representation (
id. at 11), or to his trial counsels' belief of
his guilt ( id. at 4, 10). He also frames this
failure to investigate as a violation of his attorneys'
duty of loyalty, a conflict of interest, and a violation of
their duty to consult with him. ( Id. at 10).
Petitioner does not identify any specific investigation that
was deferred, but references a failure to
"interview... witnesses to rebuff the
prosecution." (ECF Nos. 406-2, at 1; 406-1, at 11). In
an affidavit attached to the government's opposition, Mr.
Conte avers, "I have no knowledge of any investigation
Mr. Bracmort is referring to. As far as I recall I am not
aware of any investigation that was not performed. I never
made any statement to Mr. Bracmort that I would not
investigate the case because he was guilty." (ECF No.
410-4 Â¶ 6). He further denies that he told Petitioner he
would not prepare for trial, and states, "I spent many
hours preparing for this trial reviewing the evidence,
preparing cross-examination, voir dire, jury
instructions and closing argument. Because the
Jencks material was provided late, I filed a motion
to continue the trial in order to have more time to
prepare." (ECF No. 410-4 Â¶ 7). Petitioner has not shown
there was any investigation his attorneys unreasonably failed
to do, or how such error would have led to a different result
in the proceedings.
also alleges that he "met [Mr. Soschin] for the first
time at the defense table, just before he made his opening
statement, " and therefore argues that Mr. Soschin had
no time to prepare for trial. (ECF No. 406-2, at 2). In his
affidavit, Mr. Conte disputes this, stating that "Mr.
Soschin met with Mr. Bracmort, with me present, at least once
prior to trial." (ECF No. 410-4 Â¶ 9). Whether or not
Petitioner met Mr. Soschin prior to trial, Mr. Conte was lead
counsel at trial, and had been Petitioner's counsel for
more than eight months. Petitioner has not shown how the
assistance of an additional attorney at trial constituted
ineffective assistance of counsel.
also raises the failure of his attorneys to file pre-trial
motions for bond or for a speedy trial. (ECF Nos. 406-1, at
4; 406-2, at 3). The failure to file a bond motion does not
show deficient performance, see United States v.
Burns, 990 F.2d 1426, 1437 (4th Cir. 1993), but this
allegation is belied by the record as well. Petitioner was
detained by agreement at his renewed initial appearance (ECF
No. 74), Mr. Conte did move for a detention hearing after his
appointment (ECF No. 145). Judge Day denied Petitioner's
motion for release at a hearing on February 8, 2011 (ECF No.
154), and again denied pre-trial release at another bond
hearing on April 26 (ECF No. 173). Petitioner has also failed
to allege any prejudice resulting from the delay in his
has not demonstrated that the conduct of his attorneys prior
to trial fell below an objective standard of reasonableness,
nor has he demonstrated that any alleged errors or the fact
of his representation by multiple attorneys prejudiced the
defense such that there is a ...