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Dennis v. United States

United States District Court, D. Maryland

May 5, 2017

MICHAEL DENNIS
v.
UNITED STATES OF AMERICA Civil No. CCB-13-301

          MEMORANDUM

          Catherine C. Blake United States District Judge

         Michael Dennis is serving a 264-month sentence in the custody of the United States Bureau of Prisons after pleading guilty to conspiracy to possess with the intent to distribute cocaine base and heroin, possession of a firearm by a convicted felon, and possession of a firearm in furtherance of a drug trafficking crime. He now attacks that sentence via a motion brought under 28 U.S.C. § 2255, (ECF No. 70), arguing that his lawyer was constitutionally ineffective. In a separate motion, Dennis asks the court to equitably toll the statute of limitations. (ECF No. 73.) Dennis also asserts, via a motion for leave to supplement and request for appointment of counsel filed in 2013, (ECF No. 84), that his sentence is unlawful in light of Descamps v. United States, 133 S.Ct. 2276 (2013), and Alleyne v. United States, 133 S.Ct. 2151 (2013). Finally, in briefing authorized by the court in 2015, Dennis argues that the court may grant relief despite the Fourth Circuit's decisions in Whiteside v. United States, 775 F.3d 180 (4th Cir. 2014) (en banc), cert. denied, 135 S.Ct. 2890 (2015), and United States v. Foote, 784 F.3d 931 (4th Cir. 2015), cert. denied, 135 S.Ct. 2850 (2015). (ECF No. 95.) No hearing is necessary to the resolution of Dennis's motions. See 28 U.S.C. § 2255(b). For the reasons explained below, the § 2255 motion will be denied; the motion for equitable tolling will be denied as moot; the motion for leave to supplement will be granted, but its arguments rejected as a basis for relief; and the request for appointment of counsel will be denied.

         BACKGROUND

         Dennis was charged in a seven-count indictment alleging a series of drug trafficking and firearm counts. (See Indictment, ECF No. 1.) After unsuccessfully moving to suppress much of the evidence against him, Dennis pleaded guilty to three of the seven counts contained in the indictment. (See Plea Agreement 1, ECF No. 57.) Specifically, Dennis pleaded guilty to conspiracy to possess with the intent to distribute cocaine base and heroin in violation of 21 U.S.C. § 846, to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), and to possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). (See Plea Agreement 1-2; Judgment 1, ECF No. 60.) The plea agreement specified that, on the basis of a pre-plea criminal history report, the government believed Dennis to be a career offender and armed career criminal. (See Plea Agreement 5.) After a two-level downward adjustment for acceptance of responsibility, the government calculated the applicable advisory sentencing guideline range as 292 to 365 months of imprisonment. (See Plea Agreement 5.) Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), Dennis and the government agreed that a 264-month prison sentence would appropriately dispose of his case. (See Plea Agreement 5.)

         Before accepting that plea, the court carefully reviewed it with Dennis. During that review, Dennis acknowledged, among other things, that he understood the maximum penalties for each of the charges. (See Opp. § 2255 Mot., Ex. C (“Sent'g Tr.”) 7-8, ECF No. 81-3.) He acknowledged that he had agreed with the government as to an appropriate sentence. (See Sent'g Tr. 14-15, 19, 21.) Dennis acknowledged that no one “made any threats” to induce him to plead guilty and that no one had promised him anything in exchange for that plea that was not expressed in the written letter summarized for him by the court. (Sent'g Tr. 13-14, 21.) He indicated that he was satisfied with his attorney. (Sent'g Tr. 14.) And he acknowledged that he possessed several specific guns that affected interstate commerce, that he previously had been convicted in Maryland of a crime punishable by a prison term greater than one year, and that he had agreed with at least one other person to possess with the intent to distribute cocaine base and heroin. (See Sent'g Tr. 15-17.) The court ultimately accepted Dennis's guilty plea. (See Sent'g Tr. 22.)

         Pursuant to Dennis's request, the court sentenced him on the same day he entered his plea. (See Sent'g Tr. 22-23.) The court found that a guidelines range of between 292 and 365 months of imprisonment applied to him as an armed career criminal and career offender under U.S.S.G. § 4B1.1. (See Sent'g Tr. 23-24.) The court nonetheless granted a downward variance, imposing a total sentence of 264 months, consistent with Dennis's plea under Rule 11(c)(1)(C). (See Sent'g Tr. 30-31; Judgment 2.) The court imposed 204-month concurrent sentences for violation of 21 U.S.C. § 846 and 18 U.S.C. § 922(g)(1), and a 60-month consecutive sentence for violation of 18 U.S.C. § 924(c). (See Judgment 2.)[1] The judgment issued on December 19, 2011.

         Dennis did not appeal. On December 3, 2012, he deposited his § 2255 motion in the mail system at the facility in which he was incarcerated. (See § 2255 Mot., Certificate of Service and Mailing, ECF No. 70.) That motion, however, was incorrectly addressed and was thus returned to him on January 7, 2013. (See Mot. Equitable Tolling, Ex. A, ECF No. 73-1.) The following day, Dennis again deposited the motion in the prison mail system, alongside a motion to equitably toll the statute of limitations, both of which were received on January 25. (See Mot. Equitable Tolling, Certificate of Service and Mailing, ECF No. 73.) On July 31, 2013, he deposited in the prison mail system a motion for leave to supplement his initial filing, asserting claims under Descamps and Alleyne. (See Mot. Leave to Supplement, Certificate of Service and Mailing, ECF No. 84.) On September 15, 2015, Dennis submitted additional briefing authorized by the court, arguing, inter alia, that the Fourth Circuit's decisions in Whiteside and Foote do not foreclose relief. (See Suppl. Mot. to Vacate, ECF No. 95.)

         ANALYSIS

         I. Motion to Vacate Sentence A. Statute of Limitations

         Under 28 U.S.C. § 2255(f)(1), a federal prisoner must file his motion within one year of “the date on which the judgment of conviction becomes final.” Here, Dennis's judgment of conviction became final on January 2, 2012, “when his time for appeal expired.” Whiteside, 775 F.3d at 182. Any motion under § 2255, then, was due by January 2, 2013. As noted, however, Dennis did not successfully deposit his motion in the prison mail system until January 8, 2013, and it was not received by the court until January 25. The government thus argues that it is untimely and must be denied.

         To avoid that outcome, Dennis asserts that his motion is timely because it was filed on December 3, 2012, well before the statute of limitations had run. A certificate of mailing and service, which Dennis signed “under penalty of perjury” and attached to his § 2255 motion, indicates that Dennis initially deposited that motion, with prepaid first class postage, in the prison mail system on that date. (See § 2255 Mot., Certificate of Service and Mailing.) And that certificate, in turn, is corroborated by a photocopy of the envelope in which that motion was initially sent, which is postmarked December 3, 2012. (See Mot. Equitable Tolling, Ex. A.) As the government points out, however, that photocopy also shows that the envelope was addressed incorrectly; the zip code to the Baltimore courthouse is 21201, rather than 21202, the number written on the envelope. The motion accordingly was returned to Dennis, who received it on January 7, 2013. (See Mot. Equitable Tolling, Ex. A.) Although Dennis's previous pro se filing demonstrates that he was aware of the courthouse's correct address, (see ECF No. 68), he acted diligently upon learning of his error, depositing his motion in the prison mail system the day after it was returned to him, along with a second motion to equitably toll the statute of limitations.

         Under the so-called prison mailbox rule, a prisoner's filing “is timely if deposited in the institution's internal mailing system on or before the last day for filing.” Rule 3(d), Rules Governing Section 2254 & 2255 Proceedings in the United States District Courts; see also Houston v. Lack, 487 U.S. 266, 276 (1988).[2] Where, as here, a prisoner's initial filing is incorrectly addressed, courts have split on whether a pro se habeas petitioner is entitled to the benefit of the mailbox rule. See Chandler v. United States, Crim. No. 06-107-01-M, 2011 WL 6097378, at *4 (D. R.I. Dec. 6, 2011) (collecting cases). This court need not answer that difficult question, however. As discussed below, even if Dennis's motion were timely filed, it still would fail on the merits.

         B. Ineffective Assistance of Counsel Claims

         When a petitioner alleges a claim of ineffective assistance of counsel, he must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. See, e.g., Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, a petitioner must overcome the “‘strong presumption' that counsel's strategy and tactics fall ‘within the wide range of reasonable professional assistance.'” Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). To demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. In the context of a plea bargain, that standard requires proof of “a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

         Dennis first argues that his plea counsel rendered constitutionally deficient performance by inducing him to agree to a plea “under the promise of a capped sentence, dismissal of charges, and a threat of withdraw[al] from the case.” (§ 2255 Mot. 8.) During his plea colloquy, however, Dennis expressly confirmed that he understood the terms of the plea-which did include an agreed-upon and, in that sense, “capped” sentence, as well as dismissal of the charges to which he did not plead guilty-and that his plea had not been induced by threat or any promise that was not expressed in his written agreement. (See Sent'g Tr. 13, 19-20, 21-22.) “Absent clear and convincing evidence, to the contrary, [a defendant] is bound by the representations he made during the plea colloquy.” Walton v. Angelone, 321 F.3d 442, 462 (4th Cir. 2003). That standard recognizes that “[a] defendant's solemn declarations in open court affirming [a plea] agreement . . . ‘carry a strong presumption of verity.'” United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (second alteration and omission in original) (quoting United States v. White, 366 F.3d 291, 295 (4th Cir. 2004)). “Thus, in the absence of extraordinary circumstances, allegations in a § 2255 motion that directly contradict the petitioner's sworn statements made during a properly conducted Rule 11 colloquy are always ‘palpably incredible' and ‘patently frivolous or false'” and, accordingly, subject to summary dismissal. Id. (internal citations omitted) (quoting Blacklege v. Allison, 431 U.S. 63, 76 (1977)). As noted, Dennis's sworn statements at his plea colloquy expressly contradict the factual allegations supporting his ineffective assistance of counsel claim. No extraordinary circumstances explain that contradiction. Compare White, 366 F.3d at 300. That argument thus must be rejected without an evidentiary hearing.

         Dennis next argues that his plea counsel rendered constitutionally deficient performance by failing to investigate the prior felony convictions that supported his sentencing as an armed career criminal and career offender. Had counsel undertaken such an investigation, Dennis contends, his attorney would have discovered that his prior convictions were constitutionally infirm. Dennis does not, however, specify the defects impairing those allegedly unconstitutional prior convictions. There is thus no basis for determining whether the sentencing court would have held those prior convictions unconstitutional or whether the government would have offered Dennis a better deal on the basis of their supposed unconstitutionality. It follows that even if Dennis's plea counsel were deficient-which this court need not and does not decide- then his failing still would not establish prejudice. For this reason, Dennis's “conclusory allegations are insufficient to establish the requisite prejudice under Strickland.” United States v. Terry, 366 F.3d 312, 316 (4th Cir. 2004).

         In his reply, Dennis offers two additional grounds for holding his plea counsel ineffective, arguing both that his prior convictions “did not qualify as serious drug trafficking offenses under 28 U.S.C. § 994(h)” and that his counsel failed to remind the court of its inherent authority to vary downward from the sentencing range recommended by the Sentencing Guidelines. (Reply § 2255 Mot., ECF No. 83.) “Typically, courts will not consider an argument raised for the first time in a reply brief, ” which deprives the opposing party of an opportunity to respond. Chang-Willia ...


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