United States District Court, D. Maryland
Plaintiff, represented by George Jarrod Hazel, Office of the
United States Attorney, Mushtaq Gunja, Office of the United
States Attorney, Anthony Joseph Enright, U.S. Attorney's
Office, Christine Marie Celeste, Office of the United States
Attorney & Joshua Thomas Ferrentino, U.S. Attorney's
MEMORANDUM OPINION AND ORDER
A. FABER, Senior District Judge.
Judgment Order entered on September 30, 2016, the court
DENIED Wright's "Motion to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody, "
pursuant to 28 U.S.C. Â§ 2255. (ECF 556). The reasons for that
Wright was charged in four counts of a five-count superseding
indictment charging him with conspiracy to distribute heroin
and cocaine, in violation of 21 U.S.C. Â§ 846, (Count One);
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. Â§ 924(c)(1)(A)(iii), (Count
Three); being a felon in possession of a firearm, in
violation of 18 U.S.C. Â§ 922(g)(1), (Count Four); and
possession with intent to distribute heroin, in violation of
21 U.S.C. Â§ 841(a)(1), (Count Five). See ECF No. 321.
thirteen-day jury trial, Wright was found guilty on all
counts. See ECF No. 382. Wright was sentenced to a total term
of imprisonment of 420 months, consisting of 360 months on
Count One, 120 months on Count Four, and 240 months on Count
Five, all of which were to run concurrently, as well as a
term of 60 months on Count Three to run consecutively to the
other counts. See ECF No. 425.
August 8, 2012, Wright filed the instant motion under Â§ 2255,
alleging three grounds for relief. First, Wright contends
that his conviction on the conspiracy count was obtained in
violation of due process of law. As for his second ground for
relief, Wright claims that his trial counsel was ineffective
in apprising him of the elements of the offense and the
resulting burdens of proof and that this failure on the part
of counsel led him to reject the government's plea offer.
Finally, Wright argues that Count One is duplicitous and that
the unanimity of the jury's verdict is at issue. Wright
concedes that he did not raise the first or third grounds for
relief on direct appeal but contends that appellate counsel
did not follow his instructions to do so.
matter was originally assigned to Judge Ellen Lipton
Hollander who appointed counsel to represent Wright so that
an evidentiary hearing might be held on Count Two. The
government called into question the existence of the plea
offer which Wright said he rejected. The lead prosecutor for
Wright's case was the Honorable George J. Hazel, a United
States District Judge for the District of Maryland and,
therefore, one of Judge Hollander's colleagues. Upon
confirming that Judge Hazel might be called upon to testify
in this matter, Judge Hollander recused herself from further
consideration of the claims herein and the undersigned was
assigned to Mr. Wright's case.
evidentiary hearing was held on January 6, 2016, and March 1,
2016. On the first day of the hearing, the plea offered to
Wright was admitted into evidence. See ECF No. 622. Under the
terms of the plea agreement, Wright would agree to
plead guilty to one count of Conspiracy to Distribute and
Possess with Intent to Distribute One Kilogram or more of
Heroin, violation of 21 U.S.C. Â§ 846. See id. The plea
agreement informed Wright that by pleading guilty he faced a
maximum statutory penalty of life imprisonment. See id.
However, the plea agreement minimized Wright's sentencing
exposure as it was one under Rule 11(c)(1)(C), whereupon the
parties agreed to a sentencing range of 180-240 months. See
id. With respect to the sentencing guidelines, the plea
agreement also contained a stipulation of facts whereby
Wright would agree that the government could prove beyond a
reasonable doubt that the amount of heroin involved in the
conspiracy was at least three but less than ten kilograms.
See id. In return for Wright's plea of guilty, the United
States agreed to recommend a sentence between 180 and 240
months imprisonment. See id. Wright did not accept the
government's plea offer.
acknowledges that he failed to raise Grounds One and Three on
direct appeal but contends that, in failing to do so, his
appellate counsel was ineffective. Accordingly, all three
grounds for relief are essentially ineffective assistance of
counsel claims. The standards established by the United
States Supreme Court in determining whether a defendant was
denied his Sixth Amendment right to effective assistance of
counsel are set forth in Strickland v. Washington,
466 U.S. 668, 687 (1984). Under Strickland, a plaintiff must
show (1) that counsel's performance was so deficient that
it fell below an objective standard of reasonableness, and
(2) that counsel's deficiency resulted in prejudice so as
to render the results of the trial unreliable. Id.
at 687-91. Counsel's performance is entitled to a
presumption of reasonableness. Id . Thus, a habeas
plaintiff challenging his conviction on the grounds of
ineffective assistance must overcome a strong presumption
that the challenged actions constituted sound trial
strategies. Id. at 689. The Court in Strickland
cautioned against the ease in second-guessing counsel's
unsuccessful assistance after the adverse conviction and
sentence are entered. Id . The Fourth Circuit Court
of Appeals specifically recognized that ineffective
assistance of counsel may not be established by a
"Monday morning quarterbacking" review of
counsel's choice of trial strategy. Stamper v.
Muncie, 944 F.2d 170, 178 (4th Cir. 1991), cert. denied,
506 U.S. 1087 (1993).
the second prong of Strickland, a petitioner must show that
the errors were "sufficiently serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable." Strickland, 466 U.S. at 687.
Furthermore, a court may address the two prongs in any order
and a failure to establish one prong obviates a need to
address the other. Id. at 697 ("Although we
have discussed the performance component of an
ineffectiveness claim prior to the prejudice component, there
is no reason for a court deciding an ineffective assistance
claim to approach the inquiry in the same order or even to
address both components of the inquiry if the defendant makes
an insufficient showing on one. In particular, a court need
not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies. The object of an
ineffectiveness claim is not to grade counsel's
performance. If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.
Courts should strive to ensure that ineffectiveness claims
not become so burdensome to defense counsel that the entire
criminal justice system suffers as a result.").
Supreme Court has held that a defendant's Sixth Amendment
right to counsel extends to the plea-bargaining process.
Missouri v. Frye, 132 S.Ct. 1399, 1405-06 (2012).
However, the Court has also made clear that a defendant has
"no right to be offered a plea... nor a federal right
that the judge accept it." Lafler v. Cooper,
132 S.Ct. 1376, 1387 (2012) (quoting Frye at 1410). "In
Lafler v. Cooper, the Supreme Court held that
defendants have a right to effective assistance of counsel
during the plea-bargaining process, which includes
counsel's advice that leads to an offer's
rejection." United States v. Dailey, Civil No.
3:12-cv-362, 2013 WL 1768053, *4 (E.D. Va. Apr. 24, 2013)
(citing Lafler v. Cooper, 132 S.Ct., 1384-85
In assessing counsel's performance in advising a
defendant on a plea agreement, "the Fourth Circuit has
held that the professional norms surrounding plea
negotiations require defense counsel to do the following: 1)
notify the client of a plea offer; 2) advise the client of
the option to proceed to trial; 3) present the client with
the probable outcomes of both the guilty and sentencing
phases of each alternative; and 4) permit the client to make
the ultimate decision."
(quoting Clark v. United States, No. 07cr281, 2012
WL 253436, at *2 (D. Md. Jan. 26, 2012)). Ineffective
assistance of counsel may be shown if trial counsel provides
"gross misadvice" regarding a defendant's
"sentencing exposure" and, "but for this gross
misadvice, there is a reasonable probability that [defendant]
would have accepted the plea agreement[.]" United
States v. Merritt, 102 F.Appx. 303, 307 (4th Cir. 2004);
see also Magana v. Hofbauer, 263 F.3d 542, 547-48
(6th Cir. 2001) (requiring that movant show deficient
performance and that, but for counsel's advice, he would
have pled guilty); United States v. Gordon, 156 F.3d
376, 379-81 (2d Cir. 1998) (per curiam) (recognizing
ineffective assistance of counsel claim where counsel's
gross misadvice regarding potential sentencing exposure
caused defendant to reject plea offer); United States v.
Day, 969 F.2d 39, 42-43 (3d Cir. 1992) (same).
satisfy the prejudice prong of the Strickland test in the
context of plea negotiations, a petitioner must demonstrate a
reasonable probability that: (1) he would have accepted a
plea offer but for counsel's ineffective assistance; (2)
the plea would have been entered without the prosecution
canceling it or the trial court refusing to accept it; and
(3) the plea would have resulted in a lesser charge or a
lower sentence. Lafler, 132 S.Ct. at 1384-85.
criminal defendant's right to effective assistance of
counsel also requires that counsel be provided for the direct
appeal of a criminal conviction. Bell v. Jarvis, 236
F.3d 149, 164 (4th Cir. 2000) (en banc)
In applying the [Strickland] test to claims of ineffective
assistance of counsel on appeal, however, reviewing courts
must accord appellate counsel the presumption that he decided
which issues were most likely to afford relief on appeal.
Counsel is not obligated to assert all nonfrivolous issues on
appeal, as there can hardly be any question about the
importance of having the appellate advocate examine the
record with a view to selecting the most promising issues for
review. Indeed, winnowing out weaker arguments on appeal and
focusing on those more likely to prevail, far from being
evidence of incompetence, is the hallmark of effective
appellate advocacy. Although recognizing that notwithstanding
Barnes, it is still possible to bring a Strickland claim
based on counsel's failure to raise a particular claim on
direct appeal, the Supreme Court has recently reiterated that
it will be difficult to demonstrate that counsel was
incompetent. Generally, only when ignored issues are clearly
stronger than those presented, will the presumption of
effective assistance of counsel be overcome.
(internal citations and quotation omitted).
court of appeals has elaborated, "a discussion with the
defendant regarding a direct appeal and what issues to pursue
(if any) is critical, as multiplying assignments of error
will dilute and weaken a good case and will not save a bad
one.'" Frazer v. South Carolina, 430 F.3d
696, 705 (4th Cir. 2005) (quoting Jones v. Barnes,
463 U.S. 745, 752 (1983)).
Ground One - Error in Instructions and Verdict Form
first ground for relief, Wright contends that his conspiracy
conviction was obtained in violation of the Fifth Amendment
right to due process of law. According to Wright, "drug
type and quantity must be proven beyond a reasonable doubt
before a jury can return a guilty verdict on an aggravated
drug trafficking offense." ECF 556-1 at p.6. As to why
he did not raise this issue on direct appeal, Wright contends
that his appellate counsel did not follow his instructions to
raise the issue.
first ground for relief is without merit. Contrary to
Wright's assertions, drug type and quantity were
submitted to the jury and proven beyond a reasonable doubt.
trial court's instructions to the jury were:
In a drug distribution case, if the jury finds that the
government has proven a defendant guilty of the conspiracy,
then the jury must determine beyond a reasonable doubt what
kind or type of drug, and what quantity of drug is
attributable, or are attributable to the defendant under
565-8 at p. 85. The court then went on, in great detail, to
give further instructions as to how the jury should go about
"determining the type and quantity of controlled
substance to attribute to a particular defendant."
Id. at pp. 85-88.
Verdict Form in the underlying criminal case plainly put the
matter of drug type and quantity on Count One before the
jury. See ECF No. 382. It read as follows: "On Count One
of the Indictment charging Calvin Wright with conspiracy to
distribute a controlled substance, how do you find the
defendant:" Not Guilty or Guilty. Id . The jury
indicated that it found Wright Guilty. See id. Section 2(A)
of the Verdict Form stated:
If you find Calvin Wright guilty of Count One of the
Indictment, do you find that he conspired to distribute a
mixture or substance containing a detectable amount of
jury checked "Yes" on the Verdict Form. The Verdict
Form went on to ask the jury, "[i]f you answered yes to
2.A, what quantity of a mixture or substance containing a
detectable amount of heroin do you find attributable to
Calvin Wright?" Id . The jury was given three
choices: (a) 1 kilogram or more; (b) More than 100 grams but
less than 1 kilogram; or (c) Less than 100 grams. See id. The
jury indicated that it found 1 kilogram or more of a mixture
or substance containing a detectable amount of heroin
attributable to Wright. See id. As to Count One, the jury
further indicated on the Verdict Form that "Yes",
it found Calvin Wright "conspired to distribute a
mixture or substance containing a detectable amount of
extent that Wright's claim is that the Verdict Form was
incorrect in that it asked for a finding of guilt prior to
establishing the drug weight, that objection is without
merit. Interrogatories to establish the types and amounts of
drugs involved in a drug conspiracy, such as were used
herein, are entirely appropriate. See, e.g., United States v.
Walters, 350 F.Appx. 826, 829-30 (4th Cir. 2009).
Furthermore, Wright did not object to the Verdict Form during
the charge conference. See ECF No. 480 at pp. 57-67.
Ordinarily, a failure to object contemporaneously to a
verdict form waives the issue. However, in criminal cases,
"[a] plain error that affects substantial rights may be
considered even though it was not brought to the court's
attention." Fed. R. Crim. P. 52(b); see also Walters,
350 F.Appx. at 830 ("Next, the defendants challenge the
district court's jury instruction on the conspiracy
charge. Because this argument was not raised at trial, our
review is for plain error."). In this case, for the
reasons discussed above, there is no error in the verdict
form, plain or otherwise.
the foregoing, it is clear that Ms. Skelton was not
ineffective in failing to raise this claim on appeal.
Therefore, her performance was not ineffective under
Strickland because Wright cannot show prejudice for her
failure to raise a clearly frivolous argument. Accordingly,
the first ground advanced by Wright in his Â§ 2255 motion does
not merit habeas relief.
Ground Three - Duplicity of Count One
also argues that Count One is duplicitous and calls into
question the unanimity of the jury verdict. Specifically, he
contends that Count One charges two different conspiracies -
i.e., a conspiracy to distribute heroin and a separate
conspiracy to distribute cocaine. Acknowledging that he
failed to raise the issue on direct appeal, Wright argues
that appellate counsel was ineffective for failing to raise
is the joining in a single count of two or more distinct and
separate offenses." United States v. Burns, 990
F.2d 1426, 1438 (4th Cir. 1993) (quoting 1 Charles A. Wright,
Federal Practice and Procedure Â§ 142, at 469 (2d ed. 1982)).
"When the indictment on its face presents more than one
conspiracy in a single count, such a count is improper, as it
is considered duplicitous." United States v. Eury, Nos.
1:14CR39-1, 1:14CR39-5, 2015 WL 1861807, *5 (M.D. N.C. April
23, 2015) (citing United States v. Jackson, 926
F.Supp.2d 691, 700-01 (E.D. N.C. 2013)). As our appeals court
The overall vice of duplicity is that the jury cannot in a
general verdict render its finding on each offense, making it
difficult to determine whether a conviction rests on only one
of the offenses or on both. Adverse effects on a defendant
may include improper notice of the charges against him,
prejudice in the shaping of evidentiary ruling, in
sentencing, in limiting review on appeal, in exposure to
double jeopardy, and of course the danger that a conviction
will result from a less than unanimous verdict as to each
United States v. Kamalu, 298 F.Appx. 251, 254 (4th
Cir. 2008) (quoting United States v. Duncan, 850
F.2d 1104, 1108 n.4 (6th Cir. 1988) abrogated on other
grounds by Schad v. Arizona, 501 U.S. 624 (1991)).
Kamalu court goes on to explain that "two or more acts,
each of which would constitute an offense standing alone and
which therefore could be charged as separate counts of an
indictment, may instead be charged in a single count if those
acts could be characterized as part of a single, continuing
scheme." Id . (citations omitted); see also
United States v. Kernodle, 367 F.Supp. 844, 851
(M.D. N.C. 1973) ("An agreement to commit several crimes
is but one offense even though one or more means are alleged
to have been used to complete the conspiracy. It is well
settled that it is permissible to charge a conspiracy to
commit several crimes, all in one count of an indictment
without it being duplicitous.") (internal citations
omitted). "Moreover, a duplicitous count is not to be
dismissed unless it causes prejudice to the defendant."
Id . (citations omitted).
respect to duplicity challenges where an indictment alleges
possession with intent to distribute more than one type of
drug, this court has noted:
The rule against duplicity "does not prevent an
indictment from alleging more than one act in a single count
if the acts are part of a continuous course of conduct."
See United States v. Smith, 373 F.3d 562, 563-68
(4th Cir. 2004) (explaining that only one of the listed
offenses needed to be demonstrated for the defendant to be
convicted on the count because the offenses were part of a
larger and "continuous scheme"). In a case
factually similar to Petitioner's, the United States
Court of Appeals for the Eighth Circuit succinctly explained
why counts alleging possession with intent to distribute more
than one type of drug are not duplicitous, noting that the
charges are for "one offense, conspiracy to distribute a
controlled substance, in two ways, with marijuana and
methamphetamine." U.S. v. Moore, 184 F.3d 790,
793 (1999). In the case at hand, Petitioner was convicted on
a single count alleging possession with intent to distribute
controlled substances. Gov.'s Opp'n 4, ECF No. 63.
Although two different drugs were at issue, they were
prosecuted under one statute as a "continuing
offense" encapsulated in an ongoing course of conduct.
Smith, 373 F.3d at 563-64.
v. United States, Criminal Action No. RDB 08-0222, 2013 WL
1247658, *4 (D. Md. Mar. 25, 2013) (Bennett, J.); see also
United States v. Barlin, 686 F.2d 81, 89 (2d Cir.
1982) ("The mere fact that more than one substance is
charged, however, does not mean there are multiple
foregoing discussion confirms, there is no merit to
Wright's duplicity claim because, even though two
different drugs were at issue, Count One properly charged a
single conspiracy to distribute controlled substances.
Furthermore, any question on the unanimity of the jury's
verdict is undermined by the fact that a special verdict form
was used wherein the jury specifically found that Wright
conspired to distribute both heroin and cocaine. Therefore,
Wright's claim of ineffective assistance of counsel based
on appellate counsel's failure to raise the issue on
appeal fails on both prongs of the Strickland analysis. See
Allen at *4-5 ("Because the count was not duplicitous,
an argument in court based on duplicity would have no basis;
since it is not within the wide range of professional conduct
to pursue claims with no basis, counsel did not perform
ineffectively with regard to the first Strickland prong. As
to the second prong, which asks if actual prejudice occurred,
... "[b]ecause the duplicity assertion lacks merit, it
is improper to assume its consideration would have altered
the proceedings."); see also Orbe v. True, 233
F.Supp.2d 749, 765 (E.D. Va. 2002) ("When ineffective
assistance claims are based on the failure to raise, develop,
or properly present an underlying claim, an examination of
the merits of the underlying claim will frequently be
dispositive of the ineffective assistance claim. If the
underlying claim is meritless, counsel's failure to
pursue it can be neither unreasonable nor prejudicial, and no
further inquiry is necessary.").
Ground Two - Failures Surrounding Plea Agreement
filed an affidavit, sworn to under penalty of perjury, that
stated the following:
2. I instructed Mr. Edwards to seek a plea agreement
with the Prosecuting Attorney. The Prosecuting Attorney
presented an 11(c)(1)(C) plea for 15 years. Mr. Edwards
advised me not to accept the plea offer because the
Government could not establish the drug weight of three (3)
to ten (10) kilograms of heroin.
556-2; see also Reply Brief for Calvin Wright (ECF No. 571)
at p. 7 ("To be clear, Mr. Wright is claiming that Mr.
Edwards informed him that the Government could not prove a
conspiracy to distribute 3 to 10 kilograms of heroin, and
that Mr. Wright should not accept a plea agreement in which
Mr. Wright would be required to admit to a greater drug
quantity than the Government could prove."); Memorandum
in Support of Â§ 2255 Motion (ECF No. 556-1) at p. 14
("It is equally clear that Counsel focused on incorrect
legal standards when advising Mr. Wright not to accept the
Government's plea offer.").
time Wright testified at the evidentiary hearing in this
matter, on January 6, 2016, his testimony regarding the
advice he received from counsel concerning the proposed plea
agreement had changed in certain respects.
Q: And do you recall the terms of the plea offer?
A: I just, I remember it being 15 years. And the drug weight
was 3 to 10 kilos.
Q: And why did you - well, did you accept or reject the plea
A: I rejected the plea offer because my original indictment
was for 100 grams or more. They superseded me for a kilo or
more. Then when I get the indictment, the indictment is for
more, even more drugs, 3 to 10 kilos.
Q: The indictment or the -
A: I mean the plea offer was for more drugs than the
indictment was for.
Q: So why did you turn down the plea offer?
A: Because, because of the drug weight.
Q: What was your understanding as far as -
A: That they had to prove the 3 to 10 kilos at trial.
Q: And did you discuss this with your attorneys?
Q: Did they agree that they had to, the government would have
to prove 3 to 10 kilos?
A: They agreed to, to what I said. I'm saying like they
couldn't prove, they would have a hard time proving the
kilo and the 3 to 10 kilos. They was hopscotching for real.
And I felt - so I asked them to go back and ask for 10 years.
Q: Okay. And did they, do you know?
Q: And what was the response?
A: They, the government declined.
Q: Did either attorney ever tell you what they thought your
chances were of winning at trial?
A: I mean, you know, they say it was, they say they were
50/50 because they were ...