United States District Court, D. Maryland
AMENDED  MEMORANDUM OPINION AND
A. FABER SENIOR UNITED STATES 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. § 2255. (ECF 556). The reasons for
that decision follow.
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. § 846, (Count
One); possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A)(iii), (Count Three); being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1),
(Count Four); and possession with intent to distribute
heroin, in violation of 21 U.S.C. § 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 §
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. § 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
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 (2012)).
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.”
Id. (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.
App'x 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
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.
Id. (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)).
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
__ Yes __ No
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 cocaine.”
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. App'x 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. App'x
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
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
§ 2255 motion does not merit habeas relief.
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 § 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 has stated:
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. App'x 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
Allen 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 conspiracies.”).
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.”).
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
ECF No. 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 § 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
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
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
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 going to do their best.
Court: 50/50 to be acquitted or 50/50 on the drug weight?
A: I mean, I know I wasn't going to get acquitted, but
not 50/50 on the drug weight. Just 50/50 of, you know, of
going to trial. You know, they say, you know, might, I might