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Kunjundzic v. United States

United States District Court, D. Maryland

May 30, 2017

MIRZA KUNJUNDZIC Petitioner
v.
UNITED STATES OF AMERICA Respondent Criminal No. 10-639

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE.

         Pro se petitioner Mirza Kunjundzic has filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. ECF No. 166. The Court has considered the Motion and the Government's Opposition. For the reasons described below, the Court DENIES the Motion.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On January 30, 2014, a federal Grand Jury returned a Second Superseding Indictment against Kunjundzic charging him with eighteen criminal counts in connection with a conspiracy he allegedly engaged in with a Prince George's County Police officer that involved controlled substances, untaxed cigarettes, firearms, and extortion. ECF No. 124.

         Kunjundzic entered into an agreement with the Government and pled guilty to conspiracy to distribute and possess with intent to distribute controlled substances, in violation of 21 U.S.C. § 846 (Count 1), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(Count 8). ECF No. 162. The Government agreed to dismiss the sixteen remaining counts. Id.

         Kunjundzic went through a series of appointed counsel. On November 15, 2010, Allen Orenberg, Esquire, was appointed as counsel for Kunjundzic, but on March 1, 2011, the Court granted Orenberg's Motion for Leave to Withdraw as Counsel on the grounds that the attorney-client relationship had been irreparably damaged. ECF No. 32.

         The Court then appointed Barry Coburn, Esquire, as Kunjundzic's successor counsel. However, on September 13, 2011, Coburn filed a Motion to Withdraw as Counsel, advising the Court that Kunjundzic had told him he no longer wanted his services. ECF No. 55. The Court held an attorney inquiry hearing on October 11, 2011 at which Kunjundzic indicated that he had changed his mind. ECF No. 60. Lloyd Liu, Esquire, a lawyer in Coburn's law firm, subsequently filed a Notice of Appearance as counsel. Then, on July 1, 2013, Kunjundzic, acting pro se, filed a Motion to have Coburn and Liu dismissed, ECF No. 100, and, on August 5, 2013 they filed their own Motion for Leave to Withdraw as Counsel. ECF No. 106.

         On August 22, 2013, the Court held attorney inquiry hearing, at which it warned Kunjundzic that he could not “continuously postpone” his case by complaining of dissatisfaction with counsel. ECF No. 161 at 6: 2-4. When the Court asked Kunjundzic if he still wanted an attorney to represent him in his case, Kunjundzic, instead of responding, said “I am not consenting to anything that's occurring in this courtroom.” Id. at 9:7-8. The Court then discharged Liu and Coburn from the case and appointed Gary Proctor, Esquire, as standby counsel. ECF Nos. 111, 112.

         At the August 22 hearing, the Court and counsel discussed the status of discovery in light of the Court's appointment of standby counsel. Proctor was provided with discovery on the day of the hearing in preparation for possible participation in the trial, and the Government was directed to turn over the same discovery to Kunjundzic one month before trial if he were to conduct his own defense. ECF No. 161 at 16: 18-19. On December 13, 2013, Kunjundzic filed a motion to terminate Proctor as his counsel, but the Court denied the motion. ECF No. 122. Then, it appears, before the case went to trial, Kunjundzic on his own (without consulting Proctor) contacted the Government to discuss a plea deal and ultimately agreed to plead guilty to the two previously referenced counts. The Court conducted a thorough voir dire of Kunjundzic at the plea hearing with Proctor present but not participating. When asked by the Court whether he was satisfied with Proctor as standby counsel, Kunjundzic responded that he “[had not] talked to him much, ” but he was “pretty sure” he was “a great lawyer.” ECF No. 162 at 33:23. The Court was satisfied that Kunjundzic had knowingly and voluntarily waived his right to counsel and also knowingly and voluntarily entered his guilty plea. Id. at 34:9-10. The Court subsequently sentenced Proctor to ten years in custody as to Count 1 of the Second Superseding Indictment and five years in custody as to Count 8 to run consecutively, and be followed by five years of supervised release as to both counts, to be served concurrently. ECF No. 144.

         On December 28, 2015, Kunjundzic filed the current motion, arguing that the Court lacked subject matter jurisdiction over this case and that presumably all his counsel were ineffective. ECF No. 166.

         II. ANALYSIS

         A. SUBJECT MATTER JURISDICTION

         Kunjundzic's argument that the Court lacks subject matter jurisdiction over this case is baseless. Federal judicial power extends to “all Cases, in Law and Equity, arising under . . . the Laws of the United States . . . .” U.S. Const. art. III § 2 cl. 1. Kunjundzic was charged with and admitted to violating Federal laws, specifically 21 U.S.C. § 846 and 18 U.S.C. §§ 924(c)(2).

         This, by the way, is also not the first time Kunjundzic has raised this argument - he also challenged the Court's subject matter jurisdiction at the August 22, 2013 attorney inquiry hearing, at which point the Court clearly explained that Kunjundzic was “alleged to have committed crimes that are federal in nature in the state of Maryland, ” and was “properly taken into custody, based on . . . a warrant with probable cause.” ECF No. 161. Therefore, ...


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