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Bray v. United States

United States District Court, D. Maryland, Southern Division

September 28, 2016

BENJAMIN BRAY
v.
UNITED STATES OF AMERICA Civil No. PWG-15-3697

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge

         On December 12, 2013, the Grand Jury for the District of Maryland indicted Benjamin Bray for conspiracy to distribute a controlled substance (Count I) and being a felon in possession of an explosive (Count IV), among other charges. Indictment, ECF No. 1. On October 20, 2014, Bray entered into a Plea Agreement, under which he would plead guilty to conspiracy to distribute a controlled substance and being a felon in possession of an explosive, and the Government would dismiss the remaining counts. Plea Agr. 1, 5, ECF No. 34. On January 20, 2015, the Court accepted Bray's guilty plea as to Counts I and IV, dismissed the remaining counts, and sentenced him to ninety-six months in prison. Judgment, ECF No. 46. Bray did not appeal his sentence. Def.'s Mot. 2, ECF No. 48.

         I now must determine whether to vacate, set aside, or correct the sentence based on either of the two grounds alleged by Bray: that he received ineffective assistance of counsel, [2] and that he was sentenced erroneously because he is not a felon.[3] Def.'s Mot. 4-5. I conclude that Tyler Hall and Marc Mann's representation of Bray does not support his claim of ineffective assistance of counsel because Bray does not provide any evidence that their performances were ineffective or that he was prejudiced by their conduct. Further, Bray did not raise the alleged sentencing error on direct appeal, and even if he had, the alleged error is factually incorrect. Therefore, I will deny Bray's motion.

         I. BACKGROUND

         On December 12, 2013, Benjamin Bray was indicted by the Grand Jury for the District of Maryland for (1) one count of conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 841 (Count I); (2) one count of unlawfully making a firearm, in violation of 26 U.S.C. § 5845(a)(8) (Count II); (3) one count of possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5861(f) and 5871 (Count III); (4) one count of being a felon in possession of an explosive, in violation of 18 U.S.C. § 842(i) (Count IV); and (5) one count of possession of a destructive device in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Count V). Indictment. On March 28, 2014, Bray made his initial appearance before Magistrate Judge Jillyn K. Schulze. Initial Hr'g Minutes, ECF No. 7. On March 31, 2014, Hall was appointed as Bray's attorney pursuant to the Criminal Justice Act of 1964 (“CJA”). CJA Appointment, ECF No. 11. Hall represented Bray at his detention hearing before Magistrate Judge Charles B. Day on April 1, 2014, where Judge Day ordered Bray detained until trial. Detention Hr'g Minutes, ECF No. 12; Order of Detention, ECF No. 13. Subsequently, on July 1, 2014, Bray retained Mann as his attorney. Entry of Appearance, ECF No. 30.

         On October 2, 2014, Bray signed a Plea Agreement and pleaded guilty to Counts I and IV. Plea Agr. 2. Mann represented Bray at his rearraignment hearing on October 20, 2014 when Bray was asked whether he “had an opportunity to discuss the charges against [him] . . . with [his] attorney.” Tr. of Rearraignment 6, Ex. 2, ECF No. 59-2. Bray responded, “Yes, I have.” Id. The Court also asked Bray if he was “satisfied with the legal assistance” Mann gave him. Id. Bray responded, “Yeah.” Id. Finally, Bray pleaded guilty to Counts I and IV. Id. at 34.

         On January 12, 2015, Bray was represented by Mann at his sentencing hearing. Sentencing Hr'g Minutes, ECF No. 44. There, the Court first accepted Bray's guilty plea and dismissed Counts II, III, and V. Id.; Judgment 1. The Court then sentenced Bray to ninety-six months imprisonment, three years of supervised release, an assessment of $200.00, and restitution of $475.00. Judgment 2-6. Now Bray, acting without counsel, filed the pending motion to vacate pursuant to 28 U.S.C. § 2255 on December 3, 2015. Def.'s Mot.

         II. DISCUSSION

         28 U.S.C. § 2255(a) permits a prisoner to file a motion to vacate, set aside, or correct his sentence on the ground that it “was imposed in violation of the Constitution or laws of the United States . . . .” The prisoner must prove his case by a preponderance of the evidence. Brown v. United States, Civil No. DKC-10-2569 & Crim. No. DKC-08-529, 2013 WL 4562276, at *5 (D. Md. Aug. 27, 2013). If the court finds for the prisoner, “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). Although a pro se litigant “is entitled to have his arguments reviewed with appropriate deference, ” the Court may summarily deny the motion without a hearing “if the § 2255 motion, along with the files and records of the case, conclusively shows that [the prisoner] is not entitled to relief.” Brown, 2013 WL 4562276, at *5 (citing Gordon v. Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978), and 28 U.S.C. § 2255(b)).

         A. Ineffective Assistance of Counsel Claim

         Bray's first ground for vacating his sentence is that his “counsel fail[ed] to . . . render[ ] adequate assistance and cause[d] [Bray] to suffered prejudice.” Def.'s Mot. Att. I. This ineffective assistance of counsel claim is based on four allegations: (1) an unnamed attorney “[f]ail[ed] to effectively develop a theory of defense” (Allegation One); (2) an unnamed attorney “[f]ail[ed] to subpoena the owner of the gun . . . which [Bray] was charge[d] with and subsequently plead[ed] guilty to[], ” even though the attorney “spoke with this witness and she (Toyea Wadlington), admitted that the gun was her[s] . . . and [she] informed him that the gun was found in (Shalonda Hinton['s]) apartment (2816- West Kentucky Street Apt. #1.), ” (Allegation Two); (3) “Counsel (Mr. Donald Jay Meier), never provided [Bray] with a copy of his pre-trial discovery” (Allegation Three); and (4) Bray “told counsel (Mr. Donald Jay Meier) on a number of occasion[s] the amount of loss [was] incorrect and therefore [Bray's sentencing] guideline range was improperly calculated” (Allegation Four). Id.

         Allegations Two, Three, and Four are unrelated to Bray's case. Allegation Two is unrelated because none of the counts Bray pleaded guilty to or was indicted for involved a gun. See Plea Agr. 2 (“Defendant knowingly possessed an explosive device . . . .”); Indictment 2 (“Bray, did knowingly aid and abet another individual in the making of a firearm . . . by making a destructive device in College Park, Maryland.”). Further, Bray's second allegation mentions Toyea Wadlington, Shalonda Hinton, and an apartment at 2816 West Kentucky Street. Def.'s Mot. Att. I. Yet, neither the apartment nor these individuals were involved in this case. See Stmt. of Facts, ECF No. 34-1.

         Bray's Third and Fourth Allegations also are unrelated to Bray's case because he states that his attorney was Donald Jay Meier. Def.'s Mot. Att. I. However, Bray only was represented in this case by his CJA attorney, Hall, and his retained attorney, Mann. See Dkt. Nonetheless, even if Allegations Three and Four are related to Hall or Mann's representation of Bray, “bald allegations of ineffectiveness without factual support are not enough to overcome the presumption that counsel's actions were part of competent legal strategy.” Michael v. United States, 168 F.Supp.2d 518, 523 (D. Md. 2001). Without additional evidence of Hall or Mann's ineffectiveness, Allegations Three and Four do not support a valid claim of ineffective assistance of counsel.

         Allegation One is the only allegation that could relate to Bray's case. However, Bray's allegation that his attorneys “[f]ail[ed] to effectively develop a theory of defense, ” Def.'s Mot. Att. I, without additional evidentiary support, is not a meritorious ineffective assistance of counsel claim. An ineffective assistance of counsel claim will succeed only if a defendant shows that “counsel's performance was constitutionally deficient to the extent that it fell below an objective standard of reasonableness, and that he was prejudiced thereby.” United States v. Lomax, Civil No. WMN-13-2375 & Crim. No. WMN-10-145, 2014 WL 1340065, at *2 (D. Md. Apr. 2, 2014) (quoting Strickland v. Washington, 466 U.S. 668, 687-91 (1984)). In reviewing counsel's performance, there is a “strong presumption that counsel's conduct was within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; see also Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992). Further, a ...


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