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United States v. Bracmort

United States District Court, D. Maryland

September 26, 2016

JACINTO BRACMORT Criminal No. DKC 10-249-6

          Prince 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.

          USA, 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.

         Presently 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. § 2255 (ECF No. 406).[1] 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.

         I. Background

         Petitioner 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. § 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).[2] 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. § 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.[3] (ECF No. 359). Judgment was entered on April 24, 2012. (ECF No. 359).

         Petitioner 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 argued:

         (1) the 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. § 2255.

         Petitioner has been represented by six attorneys.[4] 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).

         Mr. 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).

         One 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).[5] 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).

         Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 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), [6] 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).

         I. Standard of Review

         Section 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. § 2255(a). If the § 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. § 2255(b).

         II. Analysis

         Petitioner brings the instant § 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).

         A. Ineffective Assistance of Counsel

         The 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).

         Claims 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.

         There 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.

         1. Multiple Attorneys and Pre-Trial Defense

         Petitioner 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, [7] 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.

         Petitioner 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.[8] ( 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 ¶ 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 ¶ 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.

         Petitioner 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 ¶ 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.

         Petitioner 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 trial.

         Petitioner 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 ...

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