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Solomon v. United States

United States District Court, D. Maryland

February 14, 2018

LORENZO MICHAEL SOLOMON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          ROGER W. TITUS UNITED STATES DISTRICT JUDGE.

         Now 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.

         1. Background Facts

         On 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.

         On 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.[1] 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.[2] 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. 169.

         The 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 reply.

         2. Analysis

         To 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.

         Petitioner 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.

         Courts 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 669.

         A. Petitioner's Claim of Ineffective Assistance for Not Calling an Exculpatory Witness Fails Because He Cannot Establish Deficient Performance or Prejudice.

         The following is Petitioner's entire argument asserting that his trial counsel constitutionally erred by not calling an exculpatory witness:

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 ...


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