United States District Court, D. Maryland
LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE
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.
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
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
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.
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
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.
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.
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).
forth below is a very abbreviated version of the evidence
adduced at trial.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
facts are included in the Discussion.
Standard of Review
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).
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).
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).
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
Ineffective Assistance of Counsel
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
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).
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).
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
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.
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.
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.
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,
“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.
Conflict of Interest
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.
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 ...