United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge
5, 2015, Petitioner Alimamy Barrie was convicted of two
counts of wire fraud in violation of 18 U.S.C. § 1343
and one count of identity theft in violation of 18 U.S.C.
§ 1028A. Verdict Form, ECF No. 99. At trial, the
Government adduced evidence that Barrie, along with
associates, obtained personal identifying information
belonging to an individual named Frank Gray and used it to
impersonate Gray and access his 401(k) managed by Fidelity
Investments and attempt to transfer his funds to an account
that they opened in his name. Am. Presentence Investigation
Report ¶¶ 6-13, ECF No. 113. Prior to Barrie's
conviction in this Court, he pled guilty in the Eastern
District of Virginia to similar charges involving another
victim, see United States v. Barrie, Plea Agreement,
No. ll-cr-476-GBL (E.D.V.A. Oct. 3, 2011), ECF No. 24, and he
engaged in the conduct that led to the subsequent conviction
while on pretrial release in Eastern District of Virginia
case, Presentence Investigation Report ¶ 16. I sentenced
Barrie to 112 months and 1 day for the offenses and for
committing them while on pretrial release. Judgment 2, ECF
No. 114. Barrie filed a Fed. R. Crim. P. 33 Motion for New
Trial, Pet.'r's Mot. New Trial, ECF No. 103, which I
denied, Mem. Op. & Order, ECF No. 109; appealed his
conviction to the Court of Appeals for the Fourth Circuit,
Notice of Appeal, ECF No. 116, which affirmed the conviction,
ECF No. 137; and filed a Petition for Certiorari, which the
Supreme Court of the United States denied, Barrie v.
United States, 136 S.Ct. 1691 (2016) (mem.). He then
filed a Motion to Vacate Conviction and Sentence pursuant to
28 U.S.C. § 2255 in this Court, in which he argues that
he received ineffective assistance of counsel at trial,
during sentencing, and on direct appeal. Pet., ECF No.
139. The Motion is fully briefed, Pet'r's Mem., ECF
No. 139-1; Resp't's Opp'n, ECF No. 142;
Pet'r's Reply, ECF No. 143, and no hearing is
necessary, see Loc. R. 105.6 (D. Md.); Rules
Governing § 2255 Cases, R. 8(a). Because I do not
find that Barrie received objectively unreasonable
representation or that a reasonable probability exists that
the outcome of his trial, sentencing, or appeal would have
been different had counsel represented Barrie in the manner
he now prefers, I will deny the Motion.
Barrie was in custody as a result of the Eastern District of
Virginia case, Special Agent Cristopher Guest of the United
States Secret Service and Special Agent James Conner of the
Federal Bureau of Investigation interviewed him in connection
with their investigation of the wire fraud committed against
Frank Gray. Trial Tr. Vol. II, at 170:9-16, ECF No. 131.
Before beginning the interview, Agents Guest and Conner
provided Barrie with a form that advised him of his
Miranda rights, and Barrie signed the form. Pretrial
Hr'g Tr. 165:13-166:3, Resp't's Opp'n Ex. C.,
ECF No. 142-3. I previously held that this constituted a
voluntary and knowing waiver of his Miranda rights.
Id. at 174:5-10. During the interview that followed,
Barrie admitted that he called Fidelity Investments while
pretending to be Gray. Trial Tr. II, at 176:5- 20. Barrie
said that he made the calls from a phone belonging to
Patricia Williams, the mother of his friend Ishmael Bakarr.
Id. at 176:21-177:1. Barrie also told the
investigators that he obtained Gray's personal
information from an individual in New York who he called
“Kante” and created an ACH link to transfer funds
from the Fidelity Investments account to an account that he
and his associates opened in Gray's name. Id. at
trial, Agent Guest testified that he visited the home of an
individual named Laron Greenfield because an IP address from
a device used to engage in the fraudulent activity at issue
in the case was associated with his house. Trial Tr. Vol. IV,
at 16:10-24, ECF No. 133. There, Guest showed Greenfield four
photographs of Barrie and one of another subject, and
Greenfield indicated that he recognized Barrie, who he
explained lived at or frequented the house next door to his.
Id. at 17:15-18:5, 19:24-23:17. During Guest's
testimony, the Government also introduced a chart that
summarized the relationship between various IP addresses in
the case and residences associated with each address, Trial
Tr. Vol. III, at 127:13-18, ECF No. 133, and Guest, who
helped create the chart, testified as to his role in
distilling information from several trial exhibits into the
chart and was available for cross-examination, Trial Tr. Vol.
IV, at 59:23-61:17.
in part on the facts gleaned from Agents Guest and
Conner's interview with Barrie and Greenfield's
testimony concerning Barrie's presence at the house where
online aspects of the fraud were perpetrated, the jury
convicted Barrie on all counts. Verdict Form. I sentenced
Barrie to 112 months and 1 day for the offenses. Judgment 2.
This sentence was comprised of two concurrent 64-month
sentences for the two wire-fraud counts and a consecutive
24-month sentence for the identity-theft count. Id.
For each count, I also assessed an additional consecutive
sentence because Barrie committed the offenses while on
pretrial release. Id. These additional sentences
were for twelve months for each of the wire-fraud counts and
one day for the identity theft count. Id.
sentencing, Barrie filed a Fed. R. Crim. P. 33 Motion for New
Trial in which he argued, among other things, that (1) his
statements during his interview with Agents Guest and Conner
should have been excluded as involuntary; and (2) that the
summary chart should not have been admitted based on Agent
Guest's testimony because he only reviewed but did not
personally create the chart. Pet'r's Mot. New Trial
¶¶ 3, 6. With respect to both arguments, I rejected
the Motion as rehashing arguments raised, heard, and resolved
in the Government's favor in pretrial motions and at
trial respectively. Mem. Op. & Order 6, 8.
appeal, Barrie argued that the Court erred by (1) admitting
evidence of Greenfield's out-of-court identification; (2)
admitting evidence of Barrie's prior fraud conviction in
the Eastern District of Virginia; and (3) applying a sentence
enhancement that was not justified by the evidence.
United States v. Barrie, 629 F. App'x 541, 542
(4th Cir. 2015) (per curiam). The court rejected all three
arguments and affirmed the conviction. Id. at 544.
U.S.C. § 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 v. United
States, Civil No. DKC-10-2569 & Criminal No. DKC
08-529, 2013 WL 4562276, at *5 (D. Md. Aug. 27, 2013). 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. §
challenges his conviction on Sixth Amendment grounds, arguing
that he received ineffective assistance of counsel during
trial, sentencing, and on appeal. Pet'r's Mem. 3.
Ineffective-assistance-of-counsel claims are governed by
Strickland v. Washington, 466 U.S. at 668 (1984),
and its progeny. To satisfy the Strickland standard,
a petitioner must prove: (1) “that counsel's
performance fell below an objective standard of
reasonableness”; and (2) that there exists “a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 669, 688.
“[A] court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial
strategy.' ” Id. at 689 (citation
omitted). This presumption is so strong that a petitioner
alleging ineffective assistance of counsel must show that the
proceeding was rendered “fundamentally unfair” by
counsel's affirmative omissions or errors. Id.
counsel has a duty to “conduct a ‘reasonably
substantial investigation' ” into possible lines of
defense, but a reviewing court must accord “deference
to counsel's informed decisions, [and] strategic choices
must be respected . . . if they are based on professional
judgment.” Id. at 680 (quoting Washington
v. Strickland, 693 F.2d 1243, 1252 (5th Cir. 1982)). A
petitioner may raise a Sixth Amendment claim based on trial
counsel's “fail[ure] to contact and interview
important prospective witnesses, especially when they were
readily available or had been identified by the defendant
prior to trial.” Huffington v. Nuth, 140 F.3d
572, 580 (4th Cir. 1998). But “failure to investigate
everyone whose name happens to be mentioned by the defendant
does not suggest ineffective assistance.” Id.
appeal, it is presumed “that appellate counsel
‘decided which issues were most likely to afford relief
on appeal.' ” United States v. Mason, 774
F.3d 824, 828 (4th Cir. 2014) (quoting Pruett v.
Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993)).
Accordingly, constitutionally defective appellate
representation only occurs where appellate counsel