United States District Court, D. Maryland
Richard D. Bennett United States District Judge
pro se Petitioner Antoine De-Marr Washington
(“Petitioner” or “Washington”) pled
guilty before this Court to Attempted Possession with the
Intent to Distribute Five Kilograms or More of Cocaine, in
violation of 21 U.S.C. § 846. J., p. 1, ECF No. 250.
Subsequently, this Court sentenced Petitioner to 144 months
imprisonment, followed by five years of supervised release.
Id. at 2-3. Currently pending before this Court is
Petitioner's Motion to Vacate, Set Aside, or Correct
Sentence, pursuant to 28 U.S.C. § 2255 (ECF No. 367).
Having reviewed the parties' submissions, this Court
finds that no hearing is necessary. See Local Rule
105.6 (D. Md. 2016). For the reasons discussed herein,
Petitioner's Motion to Vacate (ECF No. 367) is DENIED.
to a Plea Agreement with the Government, Petitioner Antoine
De-Marr Washington (“Petitioner” or
“Washington”) has “stipulate[d] and
agree[d] that if this case had proceeded to trial, the
Government would have proven the following facts beyond a
August 6, 2014, the Federal Bureau of Investigation's
(“FBI”) Safe Streets Squad arrested an individual
[referred to as “CD” in the Plea Agreement, but
subsequently identified as Michael Barrett
(“Barrett”)] as he attempted to take possession
of multiple kilograms of cocaine. Plea Agreement, Attachment
A, p. 8, ECF No. 154. Subsequently, Barrett agreed to
cooperate with the FBI and placed a series of consensual
calls to several of his “customers.” Id.
On August 11, 2014, “[a]s a result of”
Barrett's calls, Washington and another individual
[subsequently identified as Vincent Cooper
(“Cooper”)] travelled to a meeting location in
Baltimore, “where they intended to purchase
cocaine.” Id. Washington and the other
individual “had with them more than $223, 000 to be
used toward the purchase of 5 kilograms of cocaine.”
Id. Both Washington and the other individual were
additional individuals responded to Barrett's calls and
were subsequently arrested when they travelled to meet him.
In addition to Washington and Cooper, law enforcement
arrested Jermaine Cannady (“Cannady”), Guy Bordes
Agnant, Jr. (“Agnant”), Cornell Dion Brown, Jr.
(“Brown”), Dominic William Parker
(“Parker”), Ronald Timothy Sampson
(“Sampson”), Donte Eugene Taylor
(“Taylor”), and Tavon Hopkins
“Defendants”). On August 21, 2014, a Grand Jury
returned a ten-count Indictment (ECF No. 70) charging all
nine Defendants with Conspiracy to Distribute and Possess
with Intent to Distribute Cocaine and Heroin “in or
about November 2013 through in or about August 2014, ”
in violation of 21 U.S.C. § 846 (Count 1), and charging
each Defendant with one additional count of Attempted
Possession with Intent to Distribute Heroin and/or Cocaine,
in violation of 21 U.S.C. § 846 (Counts 2-10).
to Plea Agreements with the Government, Defendants
Washington, Agnant, Cooper, Taylor, and Hopkins each pled
guilty to one of the charged offenses, in exchange for the
Government dropping the other charge. Specifically,
Washington, Agnant, Taylor, and Hopkins pled guilty to
Attempted Possession with Intent to Distribute
Cocaine(Counts 2, 4, 9 & 10 respectively), and
the Government dismissed Count 1, the Conspiracy charge, as
to those Defendants. See Washington J., p. 1, ECF
No. 250; Agnant J., p. 1, ECF No. 255; Taylor J., p. 1, ECF
No. 252; Hopkins J., p. 1, ECF No. 231. Cooper pled guilty to
Conspiracy (Count 1), and the Government dismissed the
Attempted Possession charge against Cooper (Count 7).
See Cooper J., p. 1, ECF No. 220. All five
Defendants were sentenced by this Court. This Court sentenced
Washington to 144 months imprisonment, followed by five years
of supervised release. Washington J., p. 2-3, ECF No. 250.
remaining four Defendants, Cannady, Brown, Parker, and
Sampson, went to trial in March of 2015. Following a nine-day
jury trial in this Court, Defendants Cannady, Brown, Parker,
and Sampson were found guilty on all counts, including
Conspiracy to Distribute and Possess with Intent to
Distribute Cocaine (Count 1) and Attempted
Possession with Intent to Distribute Cocaine (Counts 3, 5, 6
& 8 respectively). Verdict Sheet, ECF No. 202 [SEALED].
Michael Barrett testified as a key witness for the Government
at trial. All Defendants were subsequently sentenced by this
January of 2016, counsel for the Government submitted to
Defense counsel a single handwritten sheet of paper (ECF No.
373-1) that they “had not seen previously, ”
although it “had been seized by the FBI [prior to
trial] during the execution of a search warrant at Michael
Barrett's residence.” Letter, p. 1, ECF No. 373-1.
The Government spoke to Barrett about the handwritten sheet,
and he “advised that the document reflected notations
as to payments received for portions of drugs sold and any
money shortages regarding those payments.” Id.
Defendants Cannady, Brown, Parker, and Sampson filed a Joint
Second Motion for New Trial (ECF No. 373) on the grounds that
the Government's failure to disclose the handwritten
sheet prior to trial violated Brady v.
Maryland, 373 U.S. 83, 87 (1963) and Giglio v.
United States, 405 U.S. 150, 154 (1972). To prove a
Brady violation, a defendant must show that the
undisclosed evidence was (1) favorable to the defendant; (2)
material; and (3) that the prosecution had the material and
failed to disclose it. Moore v. Illinois, 408 U.S.
786, 794-95 (1972), accord, United States v. Horton,
693 F.3d 463, 470 (4th Cir. 2012); United States v.
King, 628 F.3d 693, 701-02 (4th Cir. 2011).
December 13, 2016, this Court conducted a hearing on the
Defendants' Joint Second Motion for New Trial. Following
several hours of argument by both Defense counsel and
Government counsel, this Court ultimately granted
Defendants' Cannady, Brown, Parker, and Sampson's
Joint Second Motion for New Trial (ECF No. 373) and vacated
its prior Judgments against those Defendants, pursuant to
Rule 33 of the Federal Rules of Criminal Procedure.
See Order, ECF No. 403. For the reasons stated on
the record at the conclusion of the December 13, 2016
hearing, this Court held that a Brady violation had
occurred, but only with respect to Count 1, the Conspiracy
charge against all Defendants. Specifically, this Court found
that the Government had the handwritten sheet (ECF No. 373-1)
in its possession prior to trial, yet failed to disclose it
to Defendants. This Court found that the handwritten sheet
was both “favorable” and “material, ”
but only with respect to the charged Conspiracy to
Distribute and Possess with Intent to Distribute (Count 1).
This Court concluded that the handwritten sheet was
fundamental to the Defense's ability to challenge
Barrett's testimony as to the existence of the charged
conspiracy. This Court did not find that the
handwritten sheet was both “favorable” and
“material” with respect to Attempted Possession
with Intent to Distribute Cocaine (Counts 3, 5, 6 & 8).
hearing on the Joint Second Motion for New Trial (ECF No.
373) filed by the Defendants Cannady, Brown, Parker, and
Sampson, this Court noted that there had been previous
motions to sever Count 1, the Conspiracy charge, from Counts
3, 5, 6 & 8, in which those four Defendants were each
individually charged with one count of Attempted Possession
with Intent to Distribute Heroin and/or Cocaine. In light of
the Brady violation as to the Conspiracy charge,
this Court concluded that it was infeasible to order a new
trial only with respect to the charged Conspiracy, but not
also with respect to the individual charges of Attempted
Possession with Intent to Distribute. Accordingly, this Court
vacated its prior Judgments in their entirety and ordered a
new trial as to all counts. Issues of severance as to
Defendants and/or individual counts may be addressed prior to
the new trial for the Defendants Cannady, Brown, Parker, and
Sampson. This Court's ruling in no way affects
Washington's plea of guilty to Attempted Possession with
Intent to Distribute multiple kilograms of Cocaine.
pending Motion to Vacate, Set Aside, or Correct Sentence,
pursuant to 28 U.S.C. § 2255 (ECF No. 367), Washington
argues that his court-appointed counsel rendered ineffective
assistance, in violation of his rights under the Sixth
Amendment to the United States Constitution. See
Mot., ECF No. 367; Reply, ECF No. 387. Additionally, although
he did not proceed to trial in this case and was not a party
to Defendants' Joint Second Motion for New Trial (ECF No.
373), Washington argues that the recently disclosed
handwritten sheet constitutes “new evidence . . . so
exculpatory in nature that [he] should now be allowed to
withdraw his guilty plea and go to trial.” Reply, p.
11, ECF No. 387. Petitioner further contends that he is
entitled to bail or release on bond pending this Court's
ruling on the pending Motion to Vacate. Mot., p. 7, ECF No.
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 ...