United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
pending before this Court is pro se Petitioner Kevin
Bernard Smith's (“Petitioner” or
“Smith”) Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 (ECF No.
106). Petitioner argues that his trial counsel
rendered ineffective assistance, in violation of his rights
under the Sixth Amendment to the United States Constitution,
U.S. Const. amend. VI. This Court has reviewed the
parties' submissions and has determined that no hearing
is necessary. See Local Rule 105.6 (D. Md. 2016).
For the reasons that follow, Petitioner's Motion to
Vacate (ECF No. 106) is DENIED.
Bernard Smith (“Petitioner” or
“Smith”) was charged with Counts I, II, III, and
VII of a nine-count Indictment (ECF. No 1) in which three
Defendants were charged in connection with an alleged scheme
to illegally obtain unemployment insurance benefits using
other people's identification information. See
Indictment, p.3, ECF No 1. Petitioner pled guilty to
conspiracy to commit access device fraud, in violation of 18
U.S.C. § 1029(a)(2), (b)(2) (Count I), and aggravated
identity theft, in violation of 18 U.S.C. § 1028A (Count
III). See Rearraignment Transcript, ECF No. 113-3
[SEALED]. Pursuant to the Plea Agreement, the Government
dismissed Counts II and VII of the Indictment. At the
rearraingment hearing, this Court engaged in a colloquy with
Petitioner, pursuant to Rule 11 of the Federal Rules of
Criminal Procedure, during which Petitioner stated that he
was satisfied with his counsel's advice and that he was
voluntarily pleading guilty. See Transcript, ECF No.
113-3. Additionally, Petitioner admitted on the record before
this Court that the Statement of Facts included in the plea
deal was an accurate description of the identity theft
scheme. See Id. This Court subsequently sentenced
Petitioner to a total of sixty-five months imprisonment
(forty-one months for Count I and twenty-four months
consecutive for Count III). See J., ECF No. 67.
appealed his sentence to the United States Court of Appeals
for the Fourth Circuit, “arguing that the statement of
facts submitted at his plea hearing was insufficient to
provide a factual basis for his guilty pleas, rendering his
pleas involuntary and constructively amending the
indictment.” United States v. Smith, 536 F.
App'x. 370, 371 (4th Cir. 2013). Petitioner also argued
that “counsel rendered ineffective assistance in
advising him to plead guilty.” Id. The Fourth
Circuit rejected Petitioner's arguments and affirmed his
sentence. Id. Specifically, the Fourth Circuit held
that the statement of facts presented during Petitioner's
plea colloquy sufficiently supported Petitioner's guilty
pleas and that any claim for ineffective assistance of
counsel must be raised “in an appropriate proceeding
for post-conviction relief.” Id.
Petitioner filed the pending Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No.
106). Petitioner argues that he received
ineffective assistance of counsel in violation of his Sixth
Amendment rights. Specifically, Petitioner contends that the
Government's evidence was insufficient to prove the
aggravated identity theft charge (Count III), that his
attorney failed to discover or notify him of this fact, and
that if he had known the Government's evidence was
insufficient, he would not have pled guilty, but rather would
have insisted on going to trial. Mot. to Vacate, ¶ 26,
ECF No. 106.
se filings are “liberally construed” and are
“held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007)(citation omitted). Under 28 U.S.C. §
2255, a prisoner in custody may seek to vacate, set aside or
correct his sentence where: (1) “the sentence was
imposed in violation of the Constitution or laws of the
United States, ” (2) the court lacked
“jurisdiction to impose the sentence, . . . [(3)] the
sentence was in excess of the maximum authorized by law, or
[(4) the sentence] is otherwise subject to a collateral
attack.” 28 U.S.C. § 2255. “[A]n error of
law does not provide a basis for collateral attack unless the
claimed error constituted ‘a fundamental defect which
inherently results in a complete miscarriage of
justice.'” United States v. Addonizio, 442
U.S. 178, 185 (1979) (quoting Hill v. United States,
368 U.S. 424, 428 (1962)).
succeed on a claim for ineffective assistance of counsel,
Petitioner must satisfy the two-pronged test established in
Strickland v. Washington. 466 U.S. 668, 671 (1984).
First, Petitioner must show that his counsel's
performance was deficient such that it fell below an
“objective standard of reasonableness.”
Id. at 688. In assessing whether counsel's
performance was deficient, courts adopt a “strong
presumption” that an attorney's actions fall within
the “wide range of reasonable professional
assistance.” Id. at 689. Second, Petitioner
must show that his counsel's performance was prejudicial,
meaning the defendant was “depriv[ed] . . . of a fair
trial.” Id. at 687. To demonstrate prejudice,
Petitioner must show there was a “reasonable
probability that, but-for counsel's [alleged]
unprofessional errors, the result of the proceeding[s] would
have been different.” Id. at 694. Both of
these prongs must be satisfied for the Petitioner to obtain
the relief he is seeking. Id. at 687.
asserts that his attorney's performance was deficient
because he failed to realize that the Government could not
prove the necessary elements of aggravated identity theft
(Count III). Aggravated identity theft requires that one, in
the commission of a statutorily enumerated underlying felony,
“knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another
person.” 18 U.S.C. § 1028A. Petitioner argues that
an account number he possessed “was not an
‘access device, ' it was an ‘unauthorized
access device, ' and therefore could not be a means of
identification.” Mot. to Vacate, ¶ 13, ECF No.
106. Petitioner also claims that because the account was
fraudulently obtained, the victim never had possession of the
account, as “something unlawful cannot lawfully belong
to someone.” Id. at ¶ 20. Therefore,
Petitioner contends, he never possessed a means of
identification that belonged to another. See Id. at
¶ ¶ 13-20.
initial matter, Petitioner contradicts his sworn statements
before this Court. At his rearraignment hearing, Petitioner
stated on the record that the Government's evidence
proved he committed aggravated identity theft. Gov't
Response Ex. 2, ECF No. 113. Moreover, Petitioner asks this
Court to narrowly define the key elements of aggravated
identity theft, though the statute explicitly calls for
broader definitions than the ones Petitioner seeks. See,
e.g., 18 U.S.C. § 1028(d)(7)(defining “means
of identification” as “any name of
number that may be used . . . to identify a specific
individual”) (emphasis added). Thus, absent any
additional evidence beyond these conclusory contentions,
Petitioner has failed to demonstrate that his attorney's
performance was objectively unreasonable. See United
States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013)
(quoting United States v. Thomas, 221 F.3d 430, 437
(3d Cir. 2000) (noting that mere conclusory statements are
insufficient for satisfying the two prongs of the
Petitioner established that his counsel's conduct was
unreasonable, Petitioner has failed to demonstrate any
prejudice. In the plea bargaining context, the
“prejudice prong of the [Strickland] test is
slightly modified, ” as Petitioner must show
“there is a reasonable probability that, but-for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hooper v.
Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) (internal
quotation marks omitted); see also Id. (quoting
Hill, 474 U.S. at 59).
guilty plea to be deemed valid, there must be an
“affirmative showing [by the defendant] that [the plea]
was intelligent and voluntary.” Boykin v.
Alabama,395 U.S. 238, 242 (1969). Such an affirmative
showing cannot come from a “silent record, ” but
rather must involve “a thorough, on-the-record
inquiry.” Savino v. Murray,82 F.3d 593, 603
(4th Cir. 1996) (referencing Boykin, 395 U.S.
243-44). The Fourth Circuit has long recognized that a
defendant's sworn statements attesting to their
comprehension of a guilty plea “are treated as
conclusive with regard to the validity of the plea and may
not be controverted later.” Id. at 603.
“Thus, in the absence of extraordinary circumstances,
allegations in a § 2255 motion that directly contradict
the petitioner's ...