United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
W. TITUS UNITED STATES DISTRICT JUDGE.
pending before the Court is Petitioner's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
(“§ 2255 Motion”). ECF No. 168. For the
reasons discussed below, the Court will deny the Motion.
April 6, 2011, a grand jury indicted Petitioner for (1)
conspiracy to possess with intent to distribute 500 grams or
more of cocaine under 21 U.S.C. § 846, and (2) attempted
possession with intent to distribute 500 grams or more of
cocaine under 21 U.S.C. §§ 846, 841(a) and 18
U.S.C. § 2. ECF No. 1. On January 9, 2013, a grand jury
issued a superseding indictment to include conspiracy to
import 500 grams or more of cocaine under 21 U.S.C. §
963 and importation of 500 grams or more of cocaine under 21
U.S.C. §§ 960(a)(1), 952(a) and 18 U.S.C. § 2.
ECF No. 75.
March 15, 2013, a jury found Petitioner guilty on all counts.
ECF No. 127. The Court sentenced him to 188 months
imprisonment on each count to run concurrently, followed by
four years of supervised release. ECF No. 139. Petitioner
appealed to the Court of Appeals for the Fourth Circuit,
which affirmed his conviction on August 18, 2014. ECF No.
163. Petitioner timely filed his § 2255 Motion on
November 24, 2015. ECF No. 168. That same day, Petitioner
also filed a Motion for an Extension of Time to File a
Memorandum of Law in Support of § 2255 Motion. ECF No.
Court granted Petitioner's Motion for an Extension of
Time (ECF No. 170), but Petitioner failed to file anything on
or before the deadline of February 15, 2016. On March 1,
2016, the Court ordered the United States to respond to
Petitioner's § 2255 Motion within 60 days of the
date of the Order, and allowed Petitioner to reply within 28
days of the United States' response. ECF No. 171. The
Government filed its timely Opposition to Petitioner's
Motion to Vacate, Set Aside, or Correct Judgment Pursuant to
28 U.S.C. § 2255. ECF No. 173. Petitioner never filed a
prevail on a § 2255 motion, a petitioner must prove by a
preponderance of the evidence that “[his] 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 . . . .” 28 U.S.C. § 2255
(2012); Miller v. United States, 261 F.2d 546, 547
(4th Cir. 1958). If the § 2255 motion, along with the
files and records of the case, “conclusively show that
[he] is entitled to no relief, ” a hearing on the
motion is unnecessary and the claims raised in the motion may
be dismissed summarily. See § 2255;
Miller, 261 F.2d at 547.
asserts that his trial counsel did not provide effective
representation under the Sixth Amendment. ECF No. 168. He
asserts that his counsel (1) failed to call exculpatory
witnesses, (2) failed to object to the admission of evidence,
(3) failed to challenge a defective indictment, and (4)
failed to challenge incorrect sentencing guideline
calculations. Id. None of Petitioner's claims
has legal merit.
examine claims of ineffective assistance of counsel under the
two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984). To succeed on an
ineffective assistance claim, a petitioner must show: (1) his
attorney's performance fell below an objective standard
of reasonableness, and (2) he suffered actual prejudice.
Strickland, 466 U.S. at 687. Under the
“performance” prong, the alleged deficiency must
be objectively unreasonable and “requires showing that
counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Id. at 689.
The Court must evaluate the conduct at issue from
counsel's perspective at the time, and must
“indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance.” Id. Under the
“prejudice” prong, the alleged deficiency must
have prejudiced the defendant, and, but for counsel's
unprofessional errors, there is a reasonable probability that
the result of the proceeding would have been different.
Id. at 687, 694. A petitioner must meet the
requirements under both prongs to prevail. Id. at
Petitioner's Claim of Ineffective Assistance for Not
Calling an Exculpatory Witness Fails Because He Cannot
Establish Deficient Performance or Prejudice.
following is Petitioner's entire argument asserting that
his trial counsel constitutionally erred by not calling an
Counsel was ineffective for failing to call favorable witness
at defendant's trial. Counsel informed the court that a
witness located in St. Vincent is available to testify about
the moneys [sic] received for business. But counsel failed to
call the witness at trial.
ECF No. 168 at 4. Petitioner does not identify who his
counsel should have called to testify. The only thing that
Petitioner tells us is there was a witness in St. Vincent who
could have testified to receiving money for business.
Id. Given the negligible amount of information that
Petitioner has supplied, the Court is unable to conclude that
his counsel's performance was deficient.
Strickland, 466 U.S. at 687. The Court cannot find,
furthermore, that his counsel “made errors so serious