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Cain v. United States

United States District Court, D. Maryland

September 1, 2017

LENNY CAIN, Petitioner,
v.
UNITED STATES OF AMERICA, Defendant. Related Civil No.: ELH-15-3320

          MEMORANDUM OPINION

          ELLEN LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE

         Lenny Cain has filed a Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 (ECF 393), as supplemented by two additional submissions, ECF 407 and ECF 408 (collectively, the “Petition”). The government filed a response in opposition to the Petition (ECF 413, “Opposition”), along with numerous exhibits. ECF 413. Mr. Cain filed a reply. ECF 421.

         Under 28 U.S.C. § 2255(b), a hearing is required “[u]nless the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief . . . .” This is such a case; no hearing is necessary. For the reasons that follow, I shall deny the Petition.

         I. Procedural Background

         A.

         This multi-defendant case began with an Indictment filed on January 11, 2012, charging five defendants with conspiracy to distribute and possession with intent to distribute oxycodone, in violation of 21 U.S.C. § 846. ECF 1. However, Cain was not named as a defendant at that time.[1]

         Cain was named as a defendant on September 19, 2012, by way of a Superseding Indictment charging Cain and seven others with conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. § 846. ECF 88; see also ECF 89. A Second Superseding Indictment was filed on April 10, 2013, adding a second count against Mr. Cain, for distribution and possession with intent to distribute oxycodone. ECF 229. All seven of Mr. Cain's codefendants pled guilty.

         Mr. Cain proceeded to a jury trial that began on May 13, 2013. ECF 257. At trial, Mr. Cain testified in his own behalf. On June 7, 2013, the jury convicted Cain of conspiracy to distribute or possess with intent to distribute oxycodone (Count One) and distribution of oxycodone (Count Two). ECF 295.

         Sentencing was held on September 26, 2013. ECF 346; ECF 369 (Sentencing Transcript). According to the Presentence Report (ECF 322, “PSR”), Cain had a total offense level of 38. See ECF 322, ¶ 32. The PSR included a two-level upward adjustment for possession of a handgun (id, ¶ 25), which I rejected at the sentencing. It also awarded four levels for a leadership role in the conspiracy. Id. ¶ 27. However, I awarded only a three-level enhancement for a managerial role. ECF 369 at 79. Therefore, I found that Mr. Cain had a final offense level of 35 and a criminal history category of VI, with an advisory sentencing guidelines range of 292 to 365 months' imprisonment. ECF 351 at 1; ECF 322; ECF 345 (Amended Presentence Report); ECF 369 at 79.

         I sentenced Mr. Cain to concurrent terms of imprisonment of 160 months as to Count One and Count Two. See ECF 350 (Judgment). That sentence was well below the bottom of the advisory sentencing guidelines range.

         Following the sentencing, Mr. Cain noted an appeal. ECF 347. Mr. Cain was represented on appeal by the same lawyer who represented him at trial. On October 7, 2014, the United States Court of Appeals for the Fourth Circuit affirmed the conviction, in an unpublished opinion. See ECF 383; see also United States v. Cain, 586 Fed. App'x 104 (4th Cir. 2014) (per curiam). The mandate issued on November 12, 2014. ECF 387. Thereafter, on March 23, 2015, the Supreme Court denied Mr. Cain's petition for writ of certiorari. Cain v. United States, 135 S.Ct. 1571 (2015).

         II. Factual Summary[2]

         Set forth below is a very abbreviated version of the evidence adduced at trial.

         In 2010, Mr. Cain and several others conspired to create phony prescriptions for oxycodone pills, a Schedule II controlled substance; to fill those prescriptions at Baltimore area pharmacies; and to resell the pills for profit.

         Joseph Church, a codefendant, testified at trial that he and Mr. Cain were “best friends” (ECF 364, Transcript of 5/22/13, at 43) as well as “partners” in the oxycodone enterprise. Id. at 52. Church stated that he “brought [Cain] into the operation” (id. at 43) and added: “I taught him everything he knew.” Id. at 44. According to Church, both he and Cain sold the pills and “split” the proceeds. Id. at 53; see Id. at 43-46, 56. The sales of oxycodone generated $30, 000 to $40, 000 per month. Id. at 56.

         Church explained that, through a friend, he and Cain obtained “a fake ID” in the name of Christopher Markley. ECF 364 at 45. In addition, Church recounted that, as the “head of the operation” (id. at 46), he and Cain “recruited runners” to go into the pharmacies, because they “didn't want to go in . . . .” Id. The runners included Eddie Moyer, Joseph Hopper, and Jason Baldwin. See, e.g., ECF 364 at 47-48; ECF 362 at 184.

         Several other members of the conspiracy also testified at the trial. For example, Wendy Pinkard was recruited by Church, who was then her boyfriend. She worked at a doctor's office, where she stole prescription forms and verified phony prescriptions upon calls from pharmacists seeking to establish the legitimacy of the prescriptions. See, e.g., ECF 362, Transcript of 5/20/13, at 158-61. Cain used some of the prescriptions that Pinkard obtained to acquire oxycodone. Id. at 173-74; ECF 364, Transcript of 5/22/13, at 57.

         During the investigation, law enforcement conducted a court-authorized search of the residence of Ms. Pinkard. Agents recovered, inter alia, prescription pads, a gun, and identification in the name of “Christopher Markley.” ECF 362, Transcript of 5/20/2013, at 179-181. Ms. Pinkard stated that she did not know a person by the name of Christopher Markley. Id. at 180. Moreover, she claimed that Church and Cain were the ones who had the Markley identification. Id. In addition, a notebook was recovered that detailed the pharmacies utilized during the conspiracy. Id. at 182-84; ECF 364, Transcript of 5/22/13, at 63-66. Some of the handwriting was Pinkard's and some was that of Church. ECF 362 at 182-83.

         At the relevant time, Nneka Ewell worked as a medical assistant at a medical clinic in Baltimore. ECF 363, Transcript of 5/21/13, at 141. Cain recruited her to answer phones and to verify phony prescriptions. Id. at 142-44, 165; ECF 364 at 49. Ewell testified that Cain came to her office with Loni Holbeck, a patient at the clinic, to seek Ewell's assistance in obtaining prescription pads. ECF 363 at 142-45, 165. Holbeck was one of the drug dealers to whom Church and Cain sold oxycodone pills. ECF 362, Transcript of 5/20/13, at 88, 95-96; ECF 364, Transcript of 5/22/13, at 53-56.

         Cain initially asked Ewell to steal prescriptions. ECF 363 at 144-45. When she refused, Cain asked her to answer the phone and verify the prescriptions if the pharmacists called to check. Id. at 145. Ewell agreed, and Cain provided her with a cell phone that he or Church would call to alert her to expect a call from a pharmacy. Id. at 145-46; see ECF 364 at 51-52. When Cain called, it generally was for a prescription for 30 mg oxycodone pills in the patient name of “Christopher Markley.” ECF 363 at 146-47.

         Another conspirator, Jason Baldwin, was involved in writing phony oxycodone prescriptions in the name of Christopher Markley. ECF 362, Transcript of 5/20/13, at 64-66, 76. He also worked as a “runner, ” entering pharmacies to fill phony prescriptions, including with Cain. See, e.g., ECF 362 at 62-63, 80-89, 161; 184; see also ECF 364 at 44-45, 58-60, 62-63. During a search of Baldwin's residence, law enforcement recovered a notebook in which Baldwin had practiced signing the name of “Christopher Markley, ” and the name of a doctor. ECF 362 at 77-78.

         Christopher Markley testified that at some point he lost his license (Govt. Exhibit 46), and reported the loss to the MVA. ECF 364, Transcript of 5/22/13, at 153. He claimed that he did not know various conspirators. Id. at 155. Moreover, he denied that he used his identification to obtain prescription pills of oxycodone. Id. at 154.

         Codefendant Edward Moyer testified that he filled phony prescriptions of Oxycodone in the name of his brother, Shawn Moyer, using his brother's Id. ECF 364, Transcript of 5/22/13, at 47-48; ECF 363, Transcript of 5/21/13, at 197-203. He obtained the fraudulent prescriptions from Mr. Cain. ECF 363 at 199, 201. Mr. Cain also supplied the identification of Shawn Moyer, in whose name prescriptions were written. Id. at 199-200, 202. Edward Moyer gave the oxycodone pills that he obtained to Mr. Cain, in exchange for money and pills. Id. at 200, 203-204.

         At trial, Shawn Moyer testified that he was incarcerated in October 2011. ECF 363, Transcript of 5/21/13, at 87. Further, he was unable “to pass” prescriptions from November 2010 to January 2011. Id. at 85-86. He also stated that his wallet, with his identification, was stolen at a bar about two weeks prior to his incarceration. ECF 363 at 86. The ID was returned to his home, while he was incarcerated. Id. However, Shawn Moyer never saw it when he was released. Id. And, he stated that his brother, Edward Moyer, had access to it. Id. He also denied passing phony prescriptions. Id. at 87.

         Church and Cain, along with Justin Serio, created fake prescriptions on a computer. ECF 362 at 164-65. They printed them on special prescription paper that had been obtained via the internet. Id. at 61-62; ECF 364 at 50-51, 70-71. A phone number of a conspirator was put on the prescription forms in the event a pharmacy called to verify the prescription. ECF 362 at 62.

         Dustin Ray, who had been incarcerated with Cain and Church, testified about several of the conversations he had with Cain. According to Ray, Cain disclosed that he and Church were working together. ECF 363, Transcript of 5/21/13, at 178-79. Cain also told Ray that he had gone into pharmacies himself on a few occasions. Id. at 178-80.

         Law enforcement was alerted to the prescription fraud scheme involving oxycodone when pharmacies contacted law enforcement to report suspicious prescriptions submitted in the names of Markley and Shawn Moyer. One report was made on October 21, 2010, by the Medicine Shoppe in the area of Brooklyn Park in Anne Arundel County, Maryland. ECF 364 at 159-160. As a result, Anne Arundel County Police Department Detective Bernard Adkins went to the pharmacy and reviewed surveillance for the relevant dates of October 20 and October 21, 2010. Id. at 160-161, 164-167. The surveillance video captured Cain as he was dropping off the prescription and then attempting to retrieve the filled prescription. Id; see also Id. 164-67. Cain's fingerprint was found on the original prescription that had been provided to the Medicine Shoppe on October 20, 2010. ECF 366, Transcript of 5/23/2013, at 35-37.

         About a month later, on December 1, 2010, a Walgreen's pharmacy in Severna Park, Maryland, contacted Detective Adkins about a suspected forged prescription for oxycodone in the name of Shawn Moyer, dated November 26, 2010. ECF 364 at 167-169. Again, Detective Adkins obtained a surveillance video. It showed Edward Moyer entering the Walgreen's pharmacy, followed by Cain. ECF 363 at 205-207.

         Through the investigation of pharmacies in the area, law enforcement identified 18 Oxycodone prescriptions filled in the name of Christopher Markley and six in the name of Shawn Moyer. Government Trial Exhibit 10 (J.A. 719A); see also ECF 365, Transcript of 5/28/13, at 76-76; ECF 413-5. The government also introduced evidence of two attempts by Cain and/or Edward Moyer to pass phony prescriptions. ECF 364 at 158-60. In sum, the government introduced 26 prescriptions, each for 180 Oxycodone pills, 30 milligrams each, for a total of 140, 400 milligrams of Oxycodone. ECF 365, Transcript of 5/28/13, at 117-18; see also Government Exhibit 10.

         Original prescriptions in the names of Christopher Markley and Shawn Moyer were also obtained from the pharmacies. ECF 364 at 127-130, 159-160, 168, 177-182, 192-195, 214-216. Cain's fingerprints were found on eleven original prescriptions in the name of Christopher Markley and on three original prescriptions in the name of Shawn Moyer. ECF 366, Transcript of 5/23/13, at 35, 37-39, 64-68, 79-90; ECF 365, Transcript of 5/28/13, at 68-70.

         Additional facts are included in the Discussion.

         III. Standard of Review

         Pursuant to 28 U.S.C. § 2255(a), a prisoner in federal custody may “move the court which imposed the sentence to vacate, set aside or correct the sentence, ” but only on certain grounds: “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . .” See also United States v. Newbold, 791 F.3d 455, 459 (4th Cir. 2015).

         Collateral attack is not a substitute for direct appeal; failure to raise certain issues on direct appeal may render them procedurally defaulted on post-conviction review. United States v. Frady, 456 U.S. 152, 165 (1982); accord Bousely v. United States, 523 U.S. 614, 630 (1998). As a general rule, a petitioner who fails to raise a claim on direct appeal is barred from raising the claim on collateral review. Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51 (2006). However, this bar generally does not apply to claims pertaining to ineffective assistance of counsel. See, e.g., Massaro v. United States, 538 U.S. 500, 503-04 (2003).

         Under 28 U.S.C. § 2255(b), the post-conviction court must hold a hearing “[u]nless the motion and the files and records conclusively show that the prisoner is entitled to no relief. . . .” See, e.g., United States v. Lemaster, 403 F.3d 216, 220-23 (4th Cir. 2005); United States v. White, 366 F.3d 291, 302 (4th Cir. 2004). Courts have determined that a hearing is not necessary where “the motion . . . fail[s] to allege sufficient facts or circumstances upon which the elements of constitutionally deficient performance might properly be found [or] where the defendant has failed to present any affidavits or other evidentiary support for the naked assertions contained in his motion.” United States v. Taylor, 139 F.3d 924, 933 (D.C. Cir. 1998) (internal quotation marks and citation omitted); accord United States v. McGill, 11 F.3d 223, 225-26 (1st Cir. 1993). On the other hand, a hearing is generally “required when a movant presents a colorable Sixth Amendment claim showing disputed material facts and a credibility determination is necessary to resolve this issue.” United States v. Robertson, 219 Fed. App'x 286, 286 (4th Cir. 2007); see also United States v. Ray, 547 Fed. App'x 343, 345 (4th Cir. 2013).

         I am mindful that a self-represented litigant is generally “held to a 'less stringent standard[ ]' than is a lawyer, and the Court must liberally construe his claims, no matter how 'inartfully' pled.” Morrison v. United States, RDB-12-3607, 2014 WL 979201, at *2 (D. Md. Mar. 12, 2014) (internal citations omitted); see Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that claims of self-represented litigants are held “to less stringent standards than formal pleadings drafted by lawyers”); Bala v. Commonwealth of Va. Dep't of Conservation & Recreation, 532 F. App'x 332, 334 (4th Cir. 2013) (per curiam) (same). Nevertheless, I am satisfied that no hearing is necessary to resolve Cain's claims.

         IV. Ineffective Assistance of Counsel

         Mr. Cain was represented at trial and on appeal by a seasoned attorney, Gary Ticknor, Esquire. In his Petition, Mr. Cain asserts numerous claims of ineffective assistance of counsel, both at trial and on appeal. See, e.g., ECF 393-2; 393-5; 393-8; ECF 398; ECF 408. Before addressing these claims, I pause to review the principles that guide my analysis.

         The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); see also Buck v. Davis, U.S., 137 S.Ct. 759, 775 (2017). Ineffective assistance of counsel is a well recognized basis for relief under § 2255. See generally Missouri v. Frye, 566 U.S. 133 (2012); Lafler v. Cooper, 566 U.S. 156 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010).

         To mount a successful challenge under 28 U.S.C. § 2255 based on a Sixth Amendment claim of ineffective assistance of counsel, a petitioner must satisfy the two-pronged test set forth in Strickland, 466 U.S. at 687-88. See United States v. Powell, 850 F.3d 145, 149 (4th Cir. 2017). First, the petitioner must show that counsel's performance was deficient. Second, the petitioner must show that he was prejudiced by the deficient performance. Id. at 687; see Buck, 137 S.Ct. at 775; Chaidez v. United States, U.S., 133 S.Ct. 1103, 1107-8 (2013); Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Hill v. Lockhart, 474 U.S. 52 (1985); Powell, 850 F.3d at 149; United States v. Rangel, 781 F.3d 736, 742 (4th Cir. 2015); Richardson v. Branker, 668 F.3d 128, 139 (4th Cir. 2012); United States v. Higgs, 663 F.3d 726, 735 (4th Cir. 2011); see, e.g., United States v. Baker, 719 F.3d 313, 318 (4th Cir. 2013).

         The first prong is known as the “performance prong, ” which relates to professional competence. The petitioner must demonstrate that his attorney's performance fell “below an objective standard of reasonableness, ” as measured by “prevailing professional norms.” Strickland, 466 U.S. at 688; see Powell, 850 F.3d at 149. The central question is whether “an attorney's representation amounted to incompetence under 'prevailing professional norms, ' not whether it deviated from best practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 88 (2011) (quoting Strickland, 466 U.S. at 690). The burden is on the petitioner to establish “'that counsel made errors so serious that his “counsel” was not functioning as the “counsel” guaranteed by the Sixth Amendment.'” Harrington v. Richter, 562 U.S. at 88 (quoting Strickland, 466 U.S. at 687).

         As the Supreme Court recently reiterated, the “first prong sets a high bar.” Buck, 137 S.Ct. at 775; see also Powell, 850 F.3d at 149. “The lawyer has discharged his constitutional responsibility so long as his decisions fall within the 'wide range of professionally competent assistance.'” Buck, 137 S.Ct. at 775 (citation omitted). Consequently, the performance prong is “'difficult'” to establish. Lawrence v. Branker, 517 F.3d 700, 709 (4th Cir. 2008) (quoting James v. Harrison, 389 F.3d 450, 457 (4th Cir. 2004)).

         To satisfy the high bar, the petitioner must show that “counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “Keenly aware of the difficulties inherent in evaluating counsel's performance, the Supreme Court has admonished that courts 'must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'” Lawrence, 517 F.3d at 708 (quoting Strickland, 446 U.S. at 689); see Harrington, 562 U.S. at 104; Lee v. Clarke, 781 F.3d 114, 122 (4th Cir. 2015). Indeed, “the Strickland standard must be applied with scrupulous care, ” Harrington, 562 U.S. at 105, and “the standard of judging counsel's representation is a most deferential one.” Id.

         Second, the petitioner must show that his attorney's deficient performance “prejudiced [his] defense.” Strickland, 466 U.S. at 687. To satisfy the “prejudice prong, ” a petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694; see also Buck, 137 S.Ct. at 776; Lafler, 566 U.S. at 163. “A reasonable probability is a probability sufficient to undermine confidence in the outcome” of the proceedings. Strickland, 466 U.S. at 687.

         The Padilla Court said, 559 U.S. at 371: “Surmounting Strickland's high bar is never an easy task.” This is because a petitioner is not entitled to post-conviction relief based on prejudice where the record establishes that it is “not reasonably likely that [the alleged error] would have made any difference in light of all the other evidence of guilt.” Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).

         A court “need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. at 697. Nor must a court address both components if one is dispositive. Jones v. Clarke, 783 F.3d 987, 991 (4th Cir. 2015). This is because failure to satisfy either prong is fatal to a petitioner's claim. As a result, “there is no reason for a court...to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.

         V. Discussion

         A. Conflict of Interest

         Mr. Cain contends that his attorney was ineffective for failing to raise at trial the alleged conflict of interest on the part of Catherine Flynn, Esquire. She represented Joseph Church, a codefendant who testified at trial for the government, and an attorney in her office briefly represented Mr. Cain in regard to related State charges. See ECF 393-2; ECF 407; see also ECF 406 (Cain Affidavit). Cain asserts, inter alia, a violation of his due process rights under the Fifth Amendment to the Constitution, based on the simultaneous, overlapping representation of Cain and Church by Ms. Flynn and a member of her law firm.

         As the government points out (ECF 413 at 10), Mr. Cain is plainly incorrect in contending that his lawyer failed to raise the issue at trial. The record reflects that on the second day of trial, May 20, 2013, the Court was alerted to an “impending motion in limine” concerning the testimony of Mr. Church, who was ...


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