United States District Court, D. Maryland
Catherine C. Blake United States District Judge.
pending is a pro se motion by Sean Darnell Fowlkes
(“Mr. Fowlkes”) under 28 U.S.C. § 2255 to
vacate, set aside, or correct sentence, as well as a related
motion for summary judgment. In both motions, Mr. Fowlkes
alleges his constitutional rights were violated with respect
to his conviction for unlawful possession of a firearm. After
reviewing the parties' submissions, the court finds that
no hearing is necessary. See Rule 8(a), Rules
Governing Section 2255 Cases in the United States District
Courts; Local Rule 105.6 (D. Md. 2016). For the following
reasons, both motions will be denied, and a certificate of
appealability will not issue.
6, 2009, law enforcement officials executed a federal search
warrant at the petitioner's residence. (See
§ 2255 Petition Mem. Law 1-2, ECF No. 143-1; Resp.
Opp'n § 2255 Petition 6, ECF No. 146). The warrant
pertained to alleged violations of 21 U.S.C. §§
841(a)(1) and 846 (distribution of controlled substances and
conspiracy to distribute controlled substances). (Resp.
Opp'n § 2255 Petition Exs. 1 & 2, ECF Nos.
146-1, 146-2). At the time of execution, law enforcement also
had an arrest warrant for Mr. Fowlkes, which was based on a
May 5, 2009 indictment charging Mr. Fowlkes and others with
conspiracy to distribute narcotics in violation of 21 U.S.C.
§ 846. (Id. Ex. 3, 11, ECF No. 146-3). Neither
the search warrant nor its accompanying affidavit, however,
mentioned that indictment. (Id. Exs. 1 & 2).
During the search of his residence, agents found a firearm,
and Mr. Fowlkes was arrested. (Id. 6).
respect to the drug indictment (“drug case, ”
CCB-09-0244), Mr. Fowlkes filed a motion to sever from other
defendants on March 9, 2010. (Resp. Opp'n § 2255
Petition Ex. 4, ECF No. 146-4). That motion also sought to
sever any forthcoming charge for unlawful possession of a
firearm from the existing drug count. (Id. Ex. 4,
2-3). During a motions hearing on May 19, 2010, the
government stated for the record that it was considering
agreeing to Mr. Fowlkes's motion to sever him from
co-defendants in the drug case and was also considering the
request to bring any gun charge separately from the drug
charge. (Id. Ex. 5, 5-8, ECF No. 146-5). In a letter
dated June 3, 2010, the government advised the court that the
government 1) would not oppose Mr. Fowlkes's motion to
sever in the drug case, 2) would seek a separate indictment
charging Mr. Fowlkes with unlawful possession of a firearm,
and 3) would arrange a trial date on the firearms charge so
that it occurred after trial in the drug case. (Id.
Ex. 6, 1, ECF No. 146-6). The government then separately
indicted Mr. Fowlkes for the firearms offense on June 15,
2010. (Id. Ex. 7, 3, ECF No. 146-7).
a trial in the drug case had been set for July 19, 2010, all
of Mr. Fowlkes's co-defendants pled guilty. (Resp.
Opp'n § 2255 Petition 9). Pretrial proceedings on
the firearms charge against Mr. Fowlkes (“gun case,
” CCB-10-332) then commenced, including a motions
hearing on October 1, 2010. At that motions hearing, this
court denied Mr. Fowlkes's motion to suppress search
warrant evidence from his residence. (Id. Ex. 8, ECF
No. 146-8). On October 20, 2010, a jury found Mr. Fowlkes
guilty on the firearms charge. (Id. Ex. 7, 6). That
same day, but before the jury returned its verdict on the gun
charge, the government indicated on the record to this court
and to the petitioner that it planned to dismiss the drug
indictment because it did not want to “try Mr. Fowlkes
twice.” (Id. Ex. 9, 3, ECF No. 146-9). After
the jury found Mr. Fowlkes guilty on the gun charge, the
government moved to dismiss the separate drug indictment
without prejudice, and the court granted that motion on April
15, 2011. (Id. Ex. 3, 33).
March 14, 2012, Mr. Fowlkes moved to have the drug indictment
dismissal converted into a dismissal with prejudice. (Resp.
in Opp'n § 2255 Petition Ex. 10, ECF No. 146-10).
This court denied that motion. (Id. Ex. 3, 36). He
then filed a petition for a writ of mandamus to the Fourth
Circuit, requesting that it compel the district court to
convert the dismissal to one with prejudice. The Fourth
Circuit denied that petition. (Id. Ex. 11, ECF No.
Fowlkes was sentenced on the firearms conviction to 60 months
imprisonment on November 4, 2011. (Resp. Opp'n §
2255 Petition Ex. 7, 12). The Fourth Circuit affirmed the
sentence on August 29, 2012. (Id. Ex. 12, ECF No.
146-12). Mr. Fowlkes then filed a petition for a writ of
certiorari, which was denied on May 28, 2013. (Id.
Fowlkes then filed this § 2255 petition on May 27, 2014,
seeking to vacate his conviction in the gun case and dismiss
with prejudice his indictment in the drug case. (§ 2255
Petition 11). The government responded in opposition on
August 5, 2014. (Resp. Opp'n § 2255 Petition). Mr.
Fowlkes replied on September 12, 2014 and, in that same
filing, claimed that he was entitled to summary judgment in
this case. (Mot. Summ. J., ECF No. 148). The government
opposed this summary judgment motion, (Resp. Opp'n Mot.
Summ. J., ECF No. 149), and Mr. Fowlkes replied, (Reply, Mot.
Summ. J., ECF No. 153).
Fowlkes was released from prison in September 2013, (Resp.
Opp'n § 2255 Petition 16), and was discharged from
supervised release on August 24, 2015, (Order, ECF No.
state a claim for relief under 28 U.S.C. § 2255, a
petitioner must prove that one of the following occurred: (1)
his sentence was “imposed in violation of the
Constitution or laws of the United States”; (2) the
“court was without jurisdiction to impose such a
sentence”; or (3) the “sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack.” 28 U.S.C. § 2255(a). If the
petitioner succeeds in making that showing, “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.” Id. § 2255(b).
sustain a claim for ineffective assistance of counsel, a
petitioner must satisfy the two-prong test set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984).
First, a petitioner must show trial counsel's performance
fell below “an objective standard of reasonableness,
” and there is a “strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. at
687-89. To satisfy the second prong, “[t]he defendant
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. When considering ineffective ...