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Whitehurst v. United States

United States District Court, D. Maryland

November 23, 2016

PHILLIP WHITEHURST, pro se Petitioner
v.
UNITED STATES OF AMERICA Respondent Criminal No. PJM 11-0567

          MEMORANDUM OPINION

          PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE

         Pro se Petitioner Phillip Whitehurst has filed the two Motions to Vacate his sentence pursuant to 28 U.S.C. S2255. The first makes five claims of ineffective assistance of counsel. ECF No. 467. The second asks the Court to examine the applicability of the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015) to his case. ECF No. 499. For the reasons set forth below, the Court DENIES both Motions.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On September 22. 2011, the Government filed a criminal complaint against twenty defendants, including Whitehurst, charging them with conspiracy to distribute and possess with intent to distribute a mixture or substance containing a detectable amount of cocaine and/or cocaine base, in violation of 21 U.S.C. § 846. A federal public defender was appointed for Whitehurst,, but moved to withdraw based on conflicts of interest. Whitehurst then went through a number of attorneys: Alan Bussard, Esquire; Allen Orenberg, Esquire; Arthur Reynolds. Esquire: and Marnitta King. Esquire. King entered her appearance as counsel of record on May 9, 2013 and represented Whitehurst in negotiating his plea, at sentencing, and in his appeals. Whitehurst's claims of ineffective assistance are made with respect to King's representation.

         Whitehurst was indicted by a grand jury on April 25, 2012 per a Third Superseding Indictment. In the Fourth and Fifth Superseding Indictments. Whitehurst was charged with three Counts: (1) conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 280 grams or more of cocaine base, in violation of 21 U.S.C. § 846 (Count One); (2) distribution and possession with intent to distribute a mixture or substance containing a detectable amount of cocaine or cocaine base, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (Count Two); and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Three). ECF No. 487 at 2.

         In September 2012, one of Whitehurst's coconspirators went to trial and several other coconspirators testified against that defendant. Id. The trial included testimony suggesting that Whitehurst was the leader of the conspiracy. Id. at 3. The defendant in that case was found guilty.

         On September 10, 2013, the Government offered Whitehurst a plea bargain through King that required him to plead guilty to Count 1, which carried a mandatory minimum sentence of 10 years and a maximum sentence of life in custody. Id. In exchange, the Government agreed not to seek an enhancement under 21 U.S.C. § 851, which would have caused Whitehurst to face a mandatory sentence of life in prison. The proposed plea agreement would have required Whitehurst to waive his appellate rights.

         On September 16, 2013, counsel for the Government met with Whitehurst and King for a "reverse proffer" session. During the meeting, the Government extensively discussed the depth and quality of the evidence against Whitehurst,, including testimony of cooperating witnesses (several of whom had already testified in his co-conspirator's trial) as well as intercepted telephone conversations between Whitehurst and various co-conspirators. ECF No. 487 at 4.

         Whitehurst ultimately rejected the Government's written plea offer, but instead, without an agreement with the Government, pled guilty to all three Counts pending against him in the Fifth Superseding Indictment, Id. at 5. Notwithstanding the fact that there was no agreement, the Government advised the Court that it would not to seek an enhancement pursuant to 21 U.S.C. § 851, which would have mandated a sentence of life in prison.

         There were three disputed issues at sentencing: (1) the quantity of drugs attributable to Whitehurst: (2) whether he was an organizer or leader of the drug conspiracy: and (3) the calculation of his criminal history in the Pre-Sentence Report. Id. at 5. At sentencing. Judge Alexander Williams heard testimony and arguments from counsel as to those questions. Id. After the evidence was presented. King dropped her objection to an enhancement for leadership in the conspiracy. ECF No. 437 at 67 ¶ 13-14. Judge Williams gave Whitehurst "the benefit of the doubt" on the quantity of drugs, and assigned him a base offense level of 36 - a compromise between the defense's proposal of 32 and the Government's proposal of 38. ECF No. 437 at 72 ¶ 14. Judge Williams agreed with the Government as to Whitehurst's criminal history calculation.

         At sentencing, Judge Williams departed downward from the advisory guideline range of 360 months to life in custody and sentenced Whitehurst to 294 months on Count One, 240 months on Count 2. and 120 months on Count 3, all three sentences to run concurrently. Id. at 8.

         King filed a timely appeal on Whitehurst's behalf. ECF Nos. 424, 430. Her brief on appeal challenged the District Court's factual findings regarding the relevant drug amounts. ECF No. 14-4016 (4th Cir. Sept. 17, 2014.. On March 31, 2015, the United States Court of Appeals for the Fourth Circuit affirmed the District Court's judgment. ECF No. 452, 453.

         Whitehurst filed his first S 2255 petition on September 25, 2015, then tiled supplemental attachments on October 13, 2015. The Government responded on January 29, 2016, ECF No. 487, and Whitehurst replied on February 23, 2014. ECF No. 490. Whitehurst also sent a letter to the Clerk's Office on May 24, 2016, "respectfully request[ing] that your office review my case to determine if the recent Supreme Court holdings in Johnson v. United Slates. 135 S.Ct. 2551 and in Welch ...


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