United States District Court, D. Maryland, Southern Division
W. GRIMM UNITED STATES DISTRICT JUDGE.
before the Court is Petitioner Kevin Leon Mormon's Motion
to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255, which collaterally challenges a 2013
conviction for conspiracy to distribute 280 grams or more of
cocaine base in violation of 21 U.S.C. § 846, for which
Mormon is currently serving a twenty-five year sentence.
Verdict Form, ECF No. 42; Judgment, ECF No. 55. Mormon argues
that his conviction should be vacated because (1) the
Government elicited a confession that played a key role in
his conviction in violation of his Sixth Amendment right to
counsel; (2) the Court admitted out-of-court statements that
violated his Confrontation Clause rights; (3) he received
ineffective assistance of counsel at trial and on appeal; (4)
the Government committed various forms of prosecutorial
misconduct. Pet'r's Mot., ECF No. 85. Mormon filed a
Memorandum in support of his Motion, Pet'r's Mem.,
ECF No. 85-1, and the Government has opposed it,
Resp't's Opp'n, ECF No. 91. No hearing is
necessary. See Loc. R. 105.6 (D. Md.); Rules
Governing § 2255 Cases, R. 8(a). Apart from some of
Mormon's ineffective-assistance-of-counsel claims, the
Court lacks jurisdiction to review the issues raised in the
Motion because Mormon either already litigated the issues on
direct appeal or failed to do so and has not met §
2255's cause-and-prejudice standard. Regarding
Mormon's ineffective-assistance-of-counsel claims, I do
not find that he received objectively unreasonable
representation or that a reasonable probability exists that
the outcome of his trial or appeal would have been different
had counsel conducted the representation differently.
Accordingly, I will deny the Motion.
Mormon was being held at the Federal Correctional Institute
in Gilmer, West Virginia (“FCI-Gilmer”) for a
violation of supervised release, a grand jury indicted him on
drug distribution charges. Indictment, ECF No. 1;
Pet'r's Mot. G1-1. After the Grand Jury handed down
its indictment, Special Agents from the Federal Bureau of
Investigation drove to FCI-Gilmer to interview Mormon in
hopes of enlisting his cooperation. July 31, 2014 Trial Tr.
57:3-6, ECF No. 75. The FBI agents administered
Miranda warnings, and Mormon orally waived his
rights but initially declined to answer questions.
Id. at 57:2-4, 8-9. Although the agents did not make
any “guarantees, ” they told Mormon that
“cooperation would be used for consideration on the
pending charges.” Id. at 61:3-4. After a
period of forty-five minutes, Mormon admitted to selling
crack and powder cocaine out of his business-Premier Auto
Salon-and identified Sharron Watson as one of his customers.
Id. at 59:8-14. Mormon estimated that he sold Watson
between ten to twelve ounces of crack cocaine once or twice
per week. Id. at 59:15-16. Mormon also informed the
agents that he purchased cocaine from a supplier in one- or
half-kilogram increments on a daily or weekly basis and sold
to between twenty and thirty customers on busy days.
Id. at 59: 25-60:1, 60:18-19. Although Mormon was
forthcoming about many details of his criminal activities, he
refused to disclose the name of his supplier without first
speaking to an attorney. Id. at
to trial, Mormon filed a Motion to Suppress, which argued,
among other things, that the Government elicited his
confession in violation of the Fifth and Sixth Amendments.
Pet'r's Mot. Suppress ¶ 3, ECF No. 12. At a
pretrial hearing, Judge Rodger Titus denied the Motion to
Suppress, holding that the agents advised Mormon of his
Miranda rights and that he voluntarily waived them.
Pretrial Hr'g Tr. 85:12-86:7, ECF No. 64. On direct
appeal, Mormon unsuccessfully challenged Judge Titus's
decision to admit his confession into evidence by arguing
that the confession was involuntary. United States v.
Mormon, 590 F.App'x 214, 215 (4th Cir. 2014) (per
curiam). The appeal did not challenge the admissibility of
the inculpatory statements on Sixth Amendment grounds.
See Id. Mormon appealed the decision to the Supreme
Court, which denied certiorari. Mormon v. United
States, 135 S.Ct. 2069 (2015) (mem.). He then filed this
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. §
2255(b). A prisoner cannot relitigate claims raised and
rejected on appeal through a § 2255 motion “absent
a[n] intervening change in the relevant law. Vasquez v.
United States, Civil No. DKC-10-3328 & Criminal No.
DKC-05-393, 2014 WL 823750, at *2 (D. Md. Feb. 28, 2014)
(citing United States v. Roane, 378 F.3d 396 n.7
(4th Cir. 2004)). Similarly, a prisoner cannot raise a new
issue that he did not object to at trial or raise on direct
appeal absent “(1) ‘cause' excusing his
double procedural default, and (2) ‘actual
prejudice' resulting from the errors of which he
complains.” United States v. Frady, 456 U.S.
152, 167 (1982).
bulk of Mormon's numerous claims allege either
ineffective assistance of counsel or prosecutorial
misconduct. I will therefore articulate the standards
governing these claims before discussing them individually.
claims are governed by Strickland v. Washington, 466
U.S. 668 (1984), and its progeny. To satisfy the
Strickland standard, a petitioner must prove: (1)
“that counsel's representation 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
688, 691. “[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.
at 700. When it comes to representation on appeal,
“reviewing courts must accord appellate counsel
‘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) (quoting
Pruett v. Thompson, 996 F.2d 1450, 1568 (4th Cir.
1993)). “Generally, only when ignored issues are
clearly stronger than those presented [on appeal], will the
presumption of ineffective assistance of counsel be
overcome.” Smith v. Robbins, 528 U.S. 259, 288
(2000) (quoting Gray v. Greer, 800 F.2d 644, 646
(7th Cir. 1986)).
prevail on a claim of prosecutorial misconduct, a defendant
must show (1) that the prosecutor's remarks and conduct
were, in fact, improper and (2) that such remarks or conduct
prejudiced the defendant to such an extent as to deprive the
defendant of a fair trial.” United States v.
Allen, 491 F.3d 178, 191 (4th Cir. 2007).
Litigated on Appeal
argues that the Government committed prosecutorial misconduct
by making improper remarks during closing arguments and that
counsel rendered ineffective assistance by failing to object
to the statements at the time they were made or adequately
raise the issue on appeal. Pet'r's Mot. G2-8 to -9,
G3-3 to -5. Although the Government conceded that the remarks
at issue were indeed improper, the Fourth Circuit held that
they were non-prejudicial. Mormon, 590 F.App'x
at 216. Accordingly, this Court lacks jurisdiction to address
these issues again, whether under the guise of a
prosecutorial-misconduct or ineffective-assistance-of-counsel
claim. See Vasquez, 2014 WL 823750, at *2.