United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
October 28. 2015. Petitioner David Wayne Nelson was sentenced
to 140 months in prison following his guilty plea to a
violation of 21 U.S.C. § 846. Conspiracy to Distribute
and Possession with Intent to Distribute Cocaine. ECF No.
264. On November 9. 2015. Nelson tiled a Motion
to Vacate. Set Aside, or Correct Sentence
("Motion to Vacate") under 28 U.S.C. § 2255.
which is currently pending before the Court. ECF No. 352.
Respondent. United States of America, filed a Response brief.
ECF No. 361, and Nelson filed a Reply brief ECF No. 365. No
hearing is necessary. See Eoc. R. 105.6 (D. Md.
2016). For the following reasons. Defendants' Motion to
Vacate is denied.
October 28. 2014. this Court sentenced Nelson to 140 months
imprisonment for his involvement in a drug trafficking
conspiracy in violation of 21 U.S.C. § 846. ECF No. 264.
At the time of his conduct in this case. Nelson was on parole
for two state offenses. ECF No. 204 at 10. Prior to his
sentencing, on April 16. 2014. Nelson entered into a plea
agreement with the Government in which they agreed that
"the parties will recommend that the Court designate a
state facility as the location where the Defendant shall
hegin serving his federal sentence" and that "[t]he
parties will also recommend that the Defendant's federal
sentence run concurrently to any other sentence imposed on
the Defendant. . . ." HCF No. 118 at 5. Although Nelson
was originally conditionally released after his arraignment
on April 16. 2014. ECF No. 148. he subsequently violated the
conditions of his release and was detained pending sentencing
on April 29. 2014. ECF No. 137.
Nelson's sentencing, the parties did not recommend that
Nelson "begin serving his federal sentence" in a
state facility, as included in the plea agreement. When the
Court inquired into this condition. Nelson's attorney,
Christopher Nieto. explained that:
At the time [of the plea deal] . . . Mr. Nelson was on
release, and so we were working diligently with his parole
officer, upon finding of guilt here, to have him taken into
State custody and then run things concurrently. That
didn't play out the way we hoped. So his parole issues
are currently still unresolved. . . . There's no State
sentence [against Nelson], so there's been a change since
the date of the initial plea.
ECF No. 361-1 at 28-29. Nieto further went on to request that
"Nelson be allowed into any residential drug or alcohol
programs that he may qualify for." Id. at 29.
The Court sentenced Nelson to 140 months of imprisonment at
FCI-Petersburg. ECF No. 264 at 2.
November 9. 2015. Nelson filed the pending Motion to Vacate,
alleging ineffective assistance of counsel "for failure
to secure transfer of defendant back to state for concurrent
service." ECF No. 352 at 4. Specifically. Nelson argues
that when "[t]he Judge at sentencing . . . had asked
whether this Defendant would be returning to the State of
Maryland . . . [Nieto] stood I mute] and the Defendant has
been prejudiced and harmed ... in that he has effectively had
his total term of incarceration increased due to the
otherwise consecutive service of his State and Federal
sentences." Id. The Government tiled a Response
on March 22. 2016, ECF No. 361. arguing that at the time of
sentencing. Nelson "was in federal (not state) custody,
due to his own failure to adhere to his conditions of
release" and that there was "no reason for Nelson
to be sent to a state facility to serve his federal sentence,
as his plea agreement envisioned." Id. at 4.
The Government further pointed out that there had not yet
been issued "and may not ever... be imposed" a
state sentence. Id. at. 4-5. This is consistent with
what Nielo conveyed to the Court at Nelson's sentencing
hearing. ECF No. 361-1 at 28 ("I am hopeful that the
parole agent . .. will recommend to the Parole Board to take
no action, to close it out."). As such, the Government
argues that Nelson fails both prongs of the Strickland
test: that Nieto's conduct fell within the range of
"professionally competent performance" because
"the stipulation in Nelson's plea agreement. . . had
no practical application." and that Nelson did not
suffer prejudice because he "is not currently subject to
any state sentence that will run consecutively to the
sentence he received in this case." ECF No. 361 at 5.
Nelson tiled a reply on October 31, 2016. arguing that he
should have been ''delivered back to the State of
Maryland for his parole revocation hearing" and that
Nieto "should have known that a sentence cannot be
given, in absentia, to any inmate. for a parole
violation." ECF No. 365 at 1.
STANDARD OF REVIEW
order to be entitled to relief under 28 U.S.C. § 2255, a
petitioner must prove by a preponderance of the evidence 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." 28 U.S.C. $ 2255(a): see also United Stales v.
Moore. 993 F.2d 1541 (4th Cir. 1993) (unpublished)
(citing Vanater v, Boles, VII F.2d 898 (4th
Cir. 1967)). Apro se petitioner is. of course,
entitled to have his arguments reviewed with appropriate
consideration. See Gordon v. Leeke, 574 F.2d 1147.
1151-53 (4th Cir. 1978). Where, however, a § 2255
petition, along with the files and records of the case,
conclusively shows the petitioner is not entitled to relief,
a hearing on the motion is unnecessary and the claims raised
therein may be dismissed summarily. 28 U.S.C. § 2255(b).
ineffective assistance of counsel claim is governed by the
two-part test set forth in Strickland v. Washington.
466 U.S. 668 (1984). "Pursuant to that test, to prevail
on an ineffective assistance claim, a petitioner must
establish that (1) counsel's performance was deficient
and (2) there is a reasonable probability that the deficiency
prejudiced the defense." Merzbachcr v. Shearin,
706 F.3d 356. 363 (4th Cir. 2013) (citing
Strickland. 466 U.S. at 687. 694). To establish that
counsel's performance was deficient, a petitioner
"must show that counsel's representation fell below
an objective standard of reasonableness." Id.
(citing Strickland. 466 U.S. at 688). However,
"[c]ourts "indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.' in order to avoid
'the distorting effects of hindsight.'"
Id., (quoting Yarbrough v. Johnson. 520
F.3d 329. 337 (4th Cir. 2008)). To establish prejudice, a
petitioner "must show that 'but for counsel's
unprofessional errors, the result of the proceeding would
have been different."" Id. (quoting
Strickland. 466 U.S. at 694). Furthermore, a
petitioner must show that counsel's "error worked to
his "actual and substantial disadvantage." not
merely that the error created a 'possibility of
prejudice.'" Satchcr v. Priictt. 126 F.3d
561. 572 (4th Cir. 1997) (quoting Murray v. Carrier.
477 U.S. 478. 494 (1986)).
Nelson's § 2255 Motion to Vacate fails to meet
either prong of the Strickland test. and is
Nelson has not shown that Nieto's "performance was
deficient" below "an objective standard of
reasonableness." Nelson's sole contention is that
Nielo did not assert Nelson's right to "receive
every benefit of the plea agreement....""
ECF No. 365 at I (emphasis in original). However, Nieto's
representation was nonetheless reasonable. Nieto and the
Government explained to the Court that they had hoped to
obtain a parole revocation hearing prior to sentencing, while
Nelson was on conditional release: this way. at sentencing
there would have been a State sentence pending that Nelson
could have served concurrently. However. Nelson violated the
terms of his conditional release, and was detained less than
two weeks after his guilty plea, before Nieto could arrange
for his parole revocation hearing. See ECF No. 137.
Nelson did not have his parole revocation hearing, and there
was no State sentence pending at the time of sentencing. As
such, the stipulation in his plea agreement-which was entered
into before he violated the terms of his conditional
release-was no longer applicable. Nieto explained this to the
Court, and continued to advocate for Nelson to "be
allowed into ...