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Flood v. United States

United States District Court, D. Maryland

January 23, 2018




         James Everett Flood, III has filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody, ECF No. 396, raising several claims of denial of effective assistance of counsel under the Sixth Amendment. Having previously denied one of Flood's claims for relief as well as the same claim raised by his co-defendant Kenneth Lighty-namely, that their counsel provided constitutionally ineffective assistance by failing to object to the Government's purported use of its peremptory juror strikes in a discriminatory manner, see United States v. Lighty, No. PJM 03-0457-1, 2016 WL 8669911, at *1 (D. Md. Aug. 12, 2016)-the Court now considers Flood's remaining claims of ineffective assistance. The Government's response is that, in every respect, Flood has failed to make out a claim under Strickland v. Washington, 466 U.S. 668, 687 (1984). Flood's Motion with respect to all remaining ineffective assistance of counsel claims is DENIED.[1]


         A full account of this case is set forth in United States v. Lighty, 616 F.3d 321, 336 (4th Cir. 2010). The Court limits itself here to a brief summary of the facts necessary to consider the current petition.

         On the evening of January 3, 2002, a group of men driving a dark Lincoln Continental kidnapped Eric Hayes-the son of a Washington, DC, police officer- in Southeast Washington, DC. United States v. Lighty, 616 F.3d 321, 337, 340 n.15 (4th Cir. 2010). The men drove Hayes to Hillcrest Heights, Maryland, and shot him multiple times in the head, killing him instantly. Id. at 338.

         A federal grand jury charged Lighty, Lorenzo Wilson, and Flood-the petitioner in this case-with kidnapping resulting in the death of Hayes, and aiding and abetting the same, 18 U.S.C. §§ 1201(a); conspiracy to kidnap, and aiding and abetting the same, 18 U.S.C. §§ 1201(c); and three counts of using a firearm in furtherance of a crime of violence, and aiding and abetting the same, 18 U.S.C. §§ 924(c). Id. at 336. The charge of kidnapping resulting in death made Flood eligible to receive the death penalty.

         The Court initially appointed Harry Trainor, Esquire, and John McKenna, Esquire, as Flood's trial attorneys but when the Government decided to seek the death penalty with respect to Lighty but not Flood, Trainor withdrew his representation and the Court appointed Michael Lawlor in his stead. ECF No. 396-1 at 1.

         Neither McKenna nor Lawlor sought to pursue plea discussions with the Government before trial. ECF No. 406. According to an affidavit Lawlor has submitted, at Flood's trial, the Government first approached him during jury selection to determine whether he (Lawlor) wanted to engage in plea discussions and Lawlor and McKenna then met with the Government that same night. Id. Assistant United States Attorney Sandra Wilkinson, one of the prosecutors in the case, has indicated that she does not have a “specific recollection” of any such discussions in this case, but will assume for purposes of this Motion that Lawlor's assertion is correct. ECF No. 409 at 10 n.3.

         According to Lawlor, during the course of this eleventh-hour discussion, the Government allegedly notified him and McKenna that Flood “would have to proffer” in order to receive a plea offer. ECF No. 406 at 2. Lawlor says that he and McKenna discussed the idea between themselves and decided that proffering “was too risky” at that point in the case, but they not did raise the prospect of proffering with Flood nor did they allow him the opportunity to determine whether he wanted them to engage in plea discussions. Id. Lawlor indicates, however, that at some point during their representation of Flood, he and McKenna “did discuss the notion of pleading guilty with him and he was not reluctant to do so. He had some concerns about the amount of time he might have to serve, naturally, but did not indicate he would not plead guilty.” Id. Beyond the brief discussion with the Government at the opening of trial and a brief follow-up that same evening, no other plea discussions took place.

         Flood and Lighty were tried together in an eleven day jury trial beginning on September 6, 2005.[2]

         During the trial, Flood's girlfriend -Tynika Marshall - testified that less than an hour before Hayes was found dead, she observed Flood “pull his Lincoln Continental up behind her car at an intersection approximately one block from” the street where Hayes was killed. Lighty, 616 F.3d at 340. Marshall also called Flood on his cell phone approximately fifteen minutes before Hayes was murdered, and again one hour later. Id. At that point, Flood and Marshall arranged to meet near the street where Hayes was killed. Once in the car, Flood instructed Marshall to drive by what was the scene of Hayes' murder, where they saw police officers gathered. Id. at 340-41. One month after the murder, Marshall and Flood drove Flood's car to North Carolina and left it with his parents. Id. at 341. Law enforcement located the car at the home of an individual who had purchased it from Flood's parents. Id. at 341 n.21. DNA testing revealed spots of Hayes' blood and fibers matching those found on his clothing in the car. Id. at 379.

         In addition, Wilson's girlfriend-Krystal Phauls-testified that around the time the police found Hayes' body, Wilson called Phauls from Flood's cell phone at least seven times, instructing her to meet him at an address approximately two miles from where Hayes was killed. Id. at 339. When Phauls arrived, she saw Lighty, Flood, and Wilson walking away from the home where Flood and Marshall later retrieved Flood's car. Id.. Lighty had blood on his shirt and the men mentioned having done “something bad” to someone. Id.

         Latasha Massey -the girlfriend of Tony Mathis, an associate of Lighty, Wilson, and Flood- also testified at Lighty and Flood's trial.[3] Id. at 344. Massey testified that Flood called Mathis the day of Hayes' murder, and, “[a]ccording to Massey, after the call, Mathis . . . [entered Flood's car and] when Mathis returned home, he had blood on the bottom of his pants and boots.” Id. Massey recalled that Flood called Mathis around breakfast time whereas Hayes' murder occurred around 8:00 PM. Trial Tr. 10/19/05 at 45-46. On cross-examination by Government counsel, Massey admitted that her impressions of Mathis and Flood that morning may not have been in connection with Hayes' murder, arguably implying that her impressions may have been linked with some other crime. Trial Tr. 10/19/05 at 49.

         The jury found Lighty and Flood guilty on all counts and sentenced Lighty to death. Lighty, 616 F.3d at 336. Flood was sentenced to life in prison on the kidnapping resulting in death count and sixty-five years of consecutive time on the remaining counts. Id.[4]

         In a consolidated decision following Lighty's and Flood's appeals, the Fourth Circuit affirmed the convictions and sentences of both. Id. at 337. The Supreme Court denied writs of certiorari with respect to both. See Lighty v. United States, 565 U.S. 962 (2011); Flood v. United States, 562 U.S. 1118 (2010).[5]

         Lighty and Flood subsequently filed motions to vacate their sentences. Flood's Motion to Vacate under 28 U.S.C. § 2255 (“§ 2255 Petition”), ECF No. 396, is presently before the Court.[6]He cites eight ways in which either or both of his trial counsel rendered constitutionally ineffective assistance. They did so, he says:

(1) By Failing to Resolve this Case with Plea Agreement;
(2) When They Failed to Move for Joinder of His Trial with that of Lorenzo Wilson;
(3) When They Failed to Move to Dismiss the Indictment as Multiplicitous;
(4) When They Failed to Object to the Government's Use of its Peremptory Strikes to Remove Women From the Jury in Violation of the Equal Protection Clause of the Fifth Amendment;
(5) When they Promised to Offer Evidence of Flood's Innocence and Good Character, then Failed to Provide It;
(6) When They Conceded Certain Evidence that Flood Claims was Sufficient to Support a Finding of Guilt;
(7) When They Failed to Request a Limiting Instruction Following the Government's Cross-Examination of Latasha Massey;
(8) When, Taken Together, Counsel's Deficient Acts and Omissions Undermined Any Confidence in the Verdict and Sentence in this Case.

         Flood has asked the Court the hold an evidentiary hearing as an initial step in vacating his conviction and sentence. ECF No. 396-1 at 27.

         The Court has already held oral argument as to one of Flood's claims, viz. the claim that counsel failed to object to the Government's use of peremptory strikes to strike women from the jury in violation of the Equal Protection Clause and Fifth Amendment. The Court denied both Flood's and Lighty's §2255 motions with respect to that claim. United States v. Lighty, No. CR PJM 03-0457-1, 2016 WL 8669911, at *1 (D. Md. Aug. 12, 2016).

         The Court also held oral argument on the remaining claims in Flood's § 2255 Petition, which the Court addresses at this time. ECF Nos. 560, 572. At the close of the hearing, the Court directed the Government to provide additional briefing as to Claim One, i.e. to specifically set forth how often and under what circumstances defense counsel in other cases have chosen not to seek a plea agreement from the Government. The Government filed its supplemental papers on August 22, 2017, and Flood responded on September 11, 2017.

         No evidentiary hearing has been held on any of the claims and, as elaborated infra, the Court finds none is necessary. See 28 U.S.C. § 2255 (b); Section IV, infra.

         II. ...

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