United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge
to Fed. R. Crim. P. 11(c)(1)(C), Petitioner Marquis Mack pled
guilty to using interstate commerce facilitates in commission
of a murder for hire, a violation of 18 U.S.C. 9 1958. Plea
Agreement, ECF No. 38. During the pendency of the case, the Court
set a deadline for the parties to respond to pretrial
motions, ECF No. 34, which it extended, ECF No. 35. The
parties entered the plea agreement prior to the response
deadline. Accordingly, the Government never filed its
responses to the pretrial motions. Now pending is Mack's
Motion to I Vacate, Set Aside, or Correct Sentence pursuant
to 28 U.S.C. 9 2255, ECF No. 62. Mack argues that the
Government violated his Fifth, Sixth, and Fourteenth
Amendment rights when it failed to respond to his pre-trial
motions and that his counsel was ineffective for failing to
object to the Government's non-response. Pet'rss Mem.
4-5, ECF No. 62-2. The Government has filed an Opposition.
Resp't's Opp'n, ECF No. 68. Although "a
pro se movant is entitled to have his arguments reviewed with
appropriate deference, " the court may summarily deny
the motion without a hearing "if the S 2255 motion,
along with the files and records of the case, conclusively
shows that [the prisoner] is not entitled to relief."
Brown v. United States, Civil No. DKC-10-2569 &
Criminal No. DKC 08-529, 2013 WL 4562276, at *5 (D. Md. Aug.
27, 203)) (citing Gordon v. Leeke, 574 F.2d 1147,
1151-53 (4th Cir. 1978); 28 U.S.C. S 2255(b)). As explained
herein, the Government has conclusively shown that Mack is
not entitled to relief. Thus, no hearing is necessary.
U.S.C. S 2255(a) permits a prisoner to file a motion to
vacate, set aside or correct his sentence on the ground that
it "was imposed in violation of the Constitution or laws
of the United States." The prisoner must prove his case
by a preponderance of the evidence. Brown, 2013 WL
4562276, at *5. If the court finds for the prisoner,
"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." 28 U.S.C. S 2255(b).
September 29, 2014, Mack was charged with use of interstate
commerce facilities in the commission of murder for hire. ECF
No. 13. At his initial appearance several days later, he pled
"not guilty." ECF No. 18. A week later, Mack's
court-appointed attorney, John Chamble, filed two Motions to
Suppress, ECF Nos. 21, 22, and a Motion to Dismiss the
Indictment, ECF No. 23. I ordered the Government to respond
to the three motions by June 29, 2015. ECF No. 31. On June
18, 2015, the Government moved for an extension to its
response deadline. ECF No. 34. I granted the motion, setting
a new deadline for July 17, 2015. June 6, 2015 Order, ECF No.
7, 2015, Mack and the Government agreed plea agreement terms.
ECF No. 38. At a Realignment held the same day, I afforded
Mack the opportunity to ask questions about the process.
Realignment Tr. 4:1-2, Resptt's Opp'n Ex. A., ECF No.
68-1. Mack indicated that he had not had sufficient time to
consider the plea deal and objected that the Government had
not responded to the pretrial motions filed by his lawyer.
Id. at 4:6-5:18. I indicated that the Realignment
could be rescheduled but that it was up to the Government
whether it would keep the plea deal open. Id. at
5:22-6:4. The Government informed the Court that the plea
offer had a deadline of 5:00 P.M. the same day. Id.
at 8:4. The Government also indicated that it would oppose
Mack's pretrial motions before the July 18 deadline if he
did not accept the plea agreement and summarized the bases
for its opposition. Id. at 8:14-11:5. I then
explained to Mack that the Government's deadline for
responding to his motions had not yet passed and that I would
not rule on those motions until a pretrial hearing scheduled
for August 17, 2015. Id. at 11:11-22. To give Mack
additional time to discuss the pending matters with his
attorney, I recessed the hearing. Id. at 11:23-25,
12:13-14. After a roughly one-hour recess, Mack accepted the
deal and pled guilty. Id. at 13:22, 36110-14.
days later, Mack filed a request to withdraw his guilty plea,
alleging that his "attorney forced [Mack] through [the
attorneys]] lack of confidence and manipulation into signing
the plea." July 8, 2015 Ltr., ECF No. 42. On October 6,
2015, I held a telephone conference call to discuss
Mack's request and ordered Mack to file a motion to
withdraw his guilty plea on or before October 30, 205.. ECF
No. 55. Mack never filed the motion, and his attorney
informed the Court that Mack no longer wished to withdraw his
plea. On December 15, 2015, I sentenced Mack to 60 months in
prison, half the term of incarceration that the Sentencing
Guidelines recommend. Sentencing Tr. 9:6-7, Resptt's
Opp'n Ex. B., ECF No. 68-2. Mack filed the pending Motion
on January 4, 2016. ECF No. 62.
government did not commit prosecutorial misconduct by
declining to respond to Mackss pretrial motions. "The
test for reversible prosecutorial misconduct has two
components: (1) the prosecutorss conduct must in fact be
improper, and (2) such conduct must have prejudicially
affected defendantss substantive rights so as to deprive the
defendant of a fair trial." United States v.
Francisco, 35 F.3d 116, 120 (4th Cir. 1994). Mack
entered his guilty plea on July 7, 2015, one week before the
Government's deadline to respond to the pretrial motions.
See ' Realignment Tr. 36:10-14;
June 6, 2015 Order. Mack's guilty plea rendered his
pretrial motions moot, obviating the need for the Government
to respond to them. I explained this to Mack at the
Sentencing Hearing. Sentencing Tr. 21:18-22 ("[W]hen
counsel notified [the Court] that there was going to be a
plea, then any obligation on the part of the government to
respond to the pending motions that had been filed was
eliminated and the plea was taken and accepted.").
Accordingly, the Government committed no misconduct when it
did not respond to the Mack's pretrial motions. Since the
Government committed no misconduct, Mackss attorneys did not
¶ render ineffective assistance by
failing to object. See Strickland v. Washington, 466
U.S. 668, 688 (1984) ("When a convicted defendant
complains of the ineffectiveness of counselss assistance, the
defendant must show that counselss representaiion fell below
an objective standard of reasonableness.").
11(a) of the Rules Governing Proceedings under 28 U.S.C.
§§ 2254 or 2255 provides that the Court must
"issue or deny a certificate of appealability when it
enters a final order adverse to the petitioner."
Brown, 2013 WL 4562276, at *10. This certificate
"is a 'jurisdictionll prerequisite' to an appeal
from the court's order" that "may issue
'only if the applicant has made a substantial showing of
the denial of a constitutional right.' "
Id. (quoting 28 U.S.C. S 2253(c)(2) and citing
United States v. Hadden, 475 F.3d 652, 659 (4th Cir.
2007)). A prisoner makes this showing "(w]here the court
denies a petitionerss motion on its merits . . . by
demonstraiing that reasonable jurists would find the
court's assessment of the constitutional claims debatable
or wrong." Id. (citing Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). Because Mack has
not shown that a reasonable jurist "would find the
court's assessment of the constitutional claim()
debatable or wrong, " and therefore has not made a
substantial showing that his Constitutional rights were
denied, this Court will not issue a certificate of
appealability; however, this ruling does not preclude Mack
from seeking a certificate of appealability from the Fourth
Circuit. See Loc. R. 22(b)(1) (4th Cir.).
Motion to Vacate, Set Aside or Correct Sentence, ECF No. 62,
IS DENIED. The Clerk is directed to file a copy of this
Memorandum Opinion and Order in Criminal No. PWG-14-458 and
Civil Action No. PWG-16-45, to MAIL ...