United States District Court, D. Maryland
Catherine C. Blake, United States District Judge
prison inmate William Leonardo Graham was convicted by a jury
of conspiracy to distribute multiple kilograms of cocaine and
sentenced to mandatory life imprisonment by Judge William D.
Quarles. His conviction was affirmed on appeal.
USA v. Graham, 711 F.3d 445 (4th Cir. 2013). Graham,
who is represented by counsel, filed a timely motion to
vacate under 28 U.S.C. § 2255 which has now been fully
briefed. For the reasons set forth below, it will be denied.
evidence presented at trial, which included the testimony of
three of Graham's co-defendants and five recorded phone
calls between members of the conspiracy (not including
Graham) intercepted on a court-authorized wiretap, is set
forth in the Fourth Circuit's opinion. 711 F.3d at
447-49. On direct appeal, counsel argued (1) an alleged
violation of the Court Reporter Act related to the fact that
the recorded calls had not been transcribed as they were
played; (2) improper admission of the co-conspirators'
statements against Graham under Fed. R. Ev. 801(d)(2)(E); and
(3) unconstitutionality of the life sentence. After thorough
consideration, including a remand to the district court to
develop an evidentiary record relating to the recorded calls,
the arguments were rejected by the Fourth Circuit.
now raises nine arguments primarily alleging ineffective
assistance of trial and/or appellate counsel and
prosecutorial misconduct. Grounds Three through Six and Nine
are procedurally defaulted, and not supported by the record;
they will be denied without further discussion for the
reasons advanced by the government. The other arguments will
be reviewed in turn under the standards set forth in
Strickland v. Washington, 466 U.S. 668 (1984),
Brady v. Maryland, 373 U.S. 83 (1963), and related
Graham claims appellate counsel was ineffective for refusing
to let him testify or provide an affidavit at the evidentiary
hearing before Judge Quarles stating that the recordings
played at trial were different from the ones provided to the
Fourth Circuit. The May 30, 2012, letter from appellate
counsel to Graham on which Graham relies, however, does not
reflect a refusal but rather a preliminary strategic
recommendation. (ECF No. 403-2). It sets forth appropriate
advice rather than imposing any inappropriate interference
with Graham's right to testify. In any event, none of the
discrepancies about which Graham says he would have
testified, assuming he was believed, would have assisted his
appeal. (ECF No. 403-1).
Graham claims the government violated its Brady
obligations by failing to disclose the ICE confidential
information file for Justin Gallardo, a co-defendant who
testified for the government at trial. That claim has now
been thoroughly developed in the record. The government
obtained the file, disclosed it to Graham's present
counsel for review under a protective order, and provided a
copy to the court for in camera review. There is
nothing in the file suggesting that ICE's relationship
with Gallardo, which ended prior to his trial testimony, was
terminated because ICE found his information unreliable. Any
additional details in the file are no more than cumulative to
the information disclosed before trial and about which
Gallardo was questioned, specifically that he was a paid
informant for the government. Gallardo was thoroughly
questioned about that prior cooperation, his drug use, and
his hope to benefit himself in connection with the present
indictment through his plea agreement and testimony at
trial.Graham has failed to show that any
favorable undisclosed impeaching information was material
such as to warrant the new trial he seeks. See Kyles v.
Whitley, 514 U.S. 419, 434 (1995); U.S. v.
Cole, 293 F.3d 153, 162-63 (4th Cir. 2002); U.S. v.
Hoyte, 51 F.3d 1239, 1242-43 (4th Cir. 1995).
Graham argues that his trial lawyer should have argued for
acquittal under Rule 29 on the ground that the evidence
showed only a buyer-seller relationship, not a conspiracy. In
light of the evidence showing Graham's repeated
involvement in the purchase and sale of very substantial
quantities of cocaine with his co-defendants, any such
argument would have failed under settled Fourth Circuit law.
U.S. v. Reid, 523 F.3d 310, 317 (4th Cir. 2008);
U.S. v. Mills, 995 F.2d 480, 485 (4th Cir. 1993).
Moreover, the evidence in this case would satisfy even the
test in U.S. v. Brown, 726 F.3d 993, 1002-04 (7th
Cir. 2013). And to the extent Graham argues that counsel
should have sought an instruction to the jury on this
defense, it is not likely that the instruction would have
been given in light of the caselaw.
Graham argues that counsel was ineffective in regard to the
admission of one of his prior convictions for possession with
intent to distribute narcotics. Trial counsel, however, did
argue against its admissibility for essentially the same
reasons Graham now presents. The case on which Graham
primarily relies, U.S. v. McBride, 676 F.3d 385 (4th
Cir. 2012), had not yet been decided and could not have been
relied on by counsel at trial. As to appellate counsel, he is
entitled to the “presumption that he decided which
issues were most likely to afford relief on appeal.”
Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000).
Graham has not shown that the 404(b) argument was likely to
succeed. The facts of this are distinguishable from
McBride, which acknowledges various circumstances
under which 404(b) evidence would still be admissible.
See also U.S. v. Penniegraft, 641 F.3d 566, 574 (4th
Cir. 2011); U.S. v. Whorley, 550 F.3d 326, 337-38
(4th Cir. 2008). In any event, Graham has not shown that the
404(b) issue was stronger than the Court Reporter Act and
co-conspirator testimonial wiretap issues which were
vigorously pursued by appellate counsel. Accordingly, relief
is not warranted on Graham's eighth claim.
the court must address whether issuance of a certificate of
appealability is warranted. The statute provides that a
certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
Graham has not met this standard, and a certificate of
appealability will not be issued.
separate Order follows.
 Judge Quarles has since
 Defense counsel notes that an
assessment sheet in the file identifies “Money”
as the motive for Gallardo's cooperation. Assuming that
such an assessment by the agent would have been admissible,
it is cumulative. And another assessment sheet also