United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge
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.
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,
that he was sentenced erroneously because he is not a
felon. 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
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.
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.
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.
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)).
Ineffective Assistance of Counsel Claim
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).
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.
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.
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 ...