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Mormon v. United States

United States District Court, D. Maryland, Southern Division

July 11, 2017

KEVIN LEON MORMON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          PAUL W. GRIMM UNITED STATES DISTRICT JUDGE.

         Pending 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.[1] 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.

         Background

         While 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 61:8-9.[2]

         Prior 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 Motion.

         Standard of Review

         28 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).

         Discussion

         The 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.

         Ineffective-assistance-of-counsel 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)).

         “To 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).

         Issues Litigated on Appeal

         Mormon 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.

         Procedural ...


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