United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge
Roy was charged in a thirteen-count indictment with,
inter alia, interstate transportation for
prostitution, in violation of 18 U.S.C. § 2421 (Counts
4, 7, 9); conspiracy to commit sex trafficking by force,
fraud, or coercion, in violation of 18 U.S.C. § 1594(c)
(Count 5); and witness and evidence tampering, in violation
of 18 U.S.C. § 1512(b)(2)(B) (Count 10).ECF No. 64. A
ten-day jury trial began on March 4, 2014, and the Court
orally granted the Government's motion to dismiss three
other counts in the Second Superseding Indictment. ECF Nos.
161, 162. At the conclusion of trial, the jury convicted Roy
on Counts 4, 5, 7, 9, 10 and acquitted him on the five
remaining counts. ECF No. 182. On July 22, 2014, the Court
sentenced Defendant to 120 months' incarceration on the
interstate transportation for prostitution counts, 240
months' incarceration on the conspiracy count, and 240
months' incarceration on the witness and evidence
tampering count, all to be served concurrently. Jmt., ECF No.
244. The Court also imposed supervised release terms of ten
years as to the interstate transportation for prostitution
counts, five years as to the conspiracy count, and three
years as to the witness and evidence tampering count, to run
concurrent to all other counts. Id. Roy appealed,
ECF No. 246, and the Fourth Circuit affirmed his conviction
and sentence. See United States v. Roy, 630 F.
App'x 169 (4th Cir. 2015) (per curiam).
pending is Roy's Motion under 28 U.S.C. § 2255 to
Vacate Set Aside, or Correct Sentence, ECF No. 331. He has
submitted a thorough Memorandum in Support, ECF No. 335, and
the Government has filed a comprehensive Opposition, ECF No.
340. Roy contends that his trial counsel provided ineffective
assistance in three regards and his appellate counsel
provided ineffective assistance in another regard.
Specifically, he argues that, when the jury posed a question
about the conspiracy count and the Court provided an answer
that did not augment the jury instructions, his trial counsel
failed to object or request additional instructions.
Relatedly, he also argues that his trial counsel failed to
object to the jury instructions pertaining to the conspiracy
charge. Additionally, he asserts that his trial counsel
failed to request a Frankshearing and to move to
suppress evidence when, as he sees it, the evidence included
search warrants with false statements. And, he contends that
his appellate counsel did not raise all of the issues Roy
wanted him to raise. But, Roy has not shown that either
attorney's performance was constitutionally deficient or
demonstrated “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” See
Strickland v. Washington, 466 U.S. 668, 694 (1984).
Accordingly, I will deny his § 2255 Motion.
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 & Crim. 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). Although “a pro se movant is
entitled to have his arguments reviewed with appropriate
deference, ” the Court may summarily deny the motion
without a hearing “if the § 2255 motion, along
with the files and records of the case, conclusively shows
that [the prisoner] is not entitled to relief.”
Brown, 2013 WL 4562276, at *5 (citing Gordon v.
Leeke, 574 F.2d 1147, 1151-53 (4th Cir.1978); 28 U.S.C.
prevail on a claim of ineffective assistance of counsel as
the alleged Constitutional violation,
[t]he petitioner must show that counsel's performance was
constitutionally deficient to the extent that it fell below
an objective standard of reasonableness, and that he was
prejudiced thereby. Strickland v. Washington, 466
U.S. 668, 687- 91 (1984). In making this determination, there
is a strong presumption that counsel's conduct was within
the wide range of reasonable professional assistance.
Id. at 689; see also Fields v. Attorney Gen. of
Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992).
Furthermore, the petitioner “bears the burden of
proving Strickland prejudice.”
Fields, 956 F.2d at 1297. “If the petitioner
fails to meet this burden, a reviewing court need not
consider the performance prong.” Fields, 956
F.2d at 1297 (citing Strickland, 466 U.S. at 697).
In considering the prejudice prong of the analysis, the Court
may not grant relief solely because the petitioner can show
that, but for counsel's performance, the outcome would
have been different. Sexton v. French, 163 F.3d 874,
882 (4th Cir. 1998). Rather, the Court “can only grant
relief under ... Strickland if the ‘result of
the proceeding was fundamentally unfair or
unreliable.'” Id. (quoting Lockhard v.
Fretwell, 506 U.S. 364, 369 (1993)).
United States v. Lomax, Civil No. WMN-13-2375 &
Crim. No. WMN-10-145, 2014 WL 1340065, at *2 (D. Md. Apr. 2,
prejudice, the defendant must demonstrate “a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” See Strickland v. Washington, 466
U.S. 668, 694 (1984). A probability is reasonable if it is
“sufficient to undermine confidence in the
outcome.” Id. Additionally, the defendant must
show that “the ‘result of the proceeding was
fundamentally unfair or unreliable.'”
Lomax, 2014 WL 1340065, at *2 (quoting Sexton v.
French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting
Lockhard v. Fretwell, 506 U.S. 364, 369 (1993)));
see also Lockhart, 506 U.S. at 369 (“[A]n
analysis focusing solely on mere outcome determination,
without attention to whether the result of the proceeding was
fundamentally unfair or unreliable, is defective.”). If
the defendant fails to show prejudice, the Court need not
consider the performance prong. Id.
Challenges Related to Jury Instructions on
Government summarizes the relevant parts of trial underlying
the first two grounds that Roy raises, and I incorporate by
reference the factual background it provides in its
Opposition. Gov't Opp'n 5-6. I also adopt its
well-reasoned analysis of the issue. See Id. at 7-
14. Notably, counsel's performance was not deficient in
failing to object to the jury instructions on the conspiracy
count, or the Court's response to the jury question about
the conspiracy instructions, because there was no basis for
an objection: The instructions, viewed as a whole, made clear
that the jury had to find that Roy conspired to commit an
unlawful act, namely sex trafficking by force, fraud, or
coercion. See United States v. Green, 599 F.3d 360,
378 (4th Cir. 2010) (instructions, taken as a whole, must
accurately state the law). Moreover, Roy has not shown a
reasonable probability that, with the instruction or
clarification he wanted, the jury would not have convicted
him, given the strength of the evidence of force, fraud, or
coercion; as a result, he has not shown prejudice.
to Request Franks Hearing
I incorporate by reference the factual background that the
Government provides in its Opposition regarding how trial
counsel handled the possibility of a Franks hearing.
Gov't Opp'n 15-16. I also adopt the Government's
well-reasoned analysis of this issue. See Id. at 17-
22. Preliminary, trial counsel simply did not fail to request
a Franks hearing: He requested one in accordance
with his client's wishes. See Jan. 27, 2014 Mot.
Hr'g Tr. 56:8-20, ECF No. 269 (“At the insistence
of Mr. Roy, I am formally requesting a Franks
hearing at this point. I think the Court and counsel are at
the same level of understanding as to the legal basis and the
underpinnings to a request for a Franks hearing,
which I am not, in my view, in a position to make at this
time, but Mr. Roy has insisted that I place on the record the
Defense request for a Franks hearing at this point.
. . . I'm only going to ask that it not impinge upon in
any way our entitlement to making such a request at some
point in the future when counsel determines it's
appropriate.”). Additionally, he filed other motions to
suppress and explained in open court why he did not believe
he could make the showing necessary ...