United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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
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.
and Lighty were tried together in an eleven day jury trial
beginning on September 6, 2005.
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.
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.
Massey -the girlfriend of Tony Mathis, an associate of
Lighty, Wilson, and Flood- also testified at Lighty and
Flood's trial. 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.
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.
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).
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.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
(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
(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
(8) When, Taken Together, Counsel's Deficient Acts and
Omissions Undermined Any Confidence in the Verdict and
Sentence in this Case.
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.
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).
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.
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