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Jones v. United States

United States District Court, D. Maryland

February 27, 2018




         Presently pending and ready for resolution are the motion to vacate sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Gary Jones (“Petitioner”) (ECF No. 219) and a motion for order to show cause for the Government's non-response filed by Petitioner (ECF No. 251). For the following reasons, the motion to vacate will be denied in part, the motion for an order to show cause for the Government's non-response will be denied, and an evidentiary hearing will be scheduled.

         I. Background [1]

         Petitioner was first tried on February 24, 2015, which resulted in a mistrial because the jury was unable to reach a unanimous verdict. He was retried, and, on April 3, 2015, Petitioner was convicted of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). (ECF No. 176). The Presentence Investigative Report and Recommendation found that under the United States Sentencing Guidelines (“USSG” or “Guidelines”), Petitioner had a criminal history of IV and a total offense score of 26. The offense score reflected a two-level enhancement for obstruction of justice because Petitioner had committed perjury by providing testimony at trial in direct contradiction of statements Petitioner previously made to the police. The Guideline range was between 92 and 116 months imprisonment. (ECF No. 190). On July 7, Petitioner was sentenced to 96 months in prison. (ECF No. 198).

         Petitioner appealed, arguing that the district court erred when it denied his motions to suppress evidence, considered certain information at his sentencing, and applied the two-level sentence enhancement for obstruction of justice. The United States Court of Appeals for the Fourth Circuit affirmed on May 19, 2016. United States v. Jones, 648 F.App'x 383 (4th Cir. 2016).

         In a series of filings, Petitioner moved to vacate his sentence pursuant to 28 U.S.C. § 2255. (ECF Nos. 219, 224, 231, 234). Petitioner alleges that: (1) counsel was ineffective for advising “Petitioner not to accept the 6 year guilty plea offered by the government” (ECF No. 234, at 4); (2) counsel was ineffective for not using a vital witness during trial who “would have testified that Petitioner did not possess or own the firearm” (ECF No. 231, at 3); (3) counsel was ineffective for “los[ing] exculpatory evidence that would have proven Petitioner's innocence” (ECF No. 231, at 3); (4) counsel was ineffective for failing to argue during sentencing that Petitioner was not the owner of the firearm (ECF No. 234-1, at 9); (5) “the obstruction of justice enhancement certainly violated Petitioner's Sixth Amendment rights” (ECF No. 234, at 8); (6) the Government engaged in prosecutorial misconduct by threatening and intimidating a witness (ECF No. 231, at 3); and (7) the sentence “was excessive and unreasonable” (ECF No. 231, at 4).

         II. Standard for Motion to Vacate Pursuant to 28 U.S.C. § 2255

         To be eligible for relief under 28 U.S.C. § 2255, a petitioner must show, 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.” 28 U.S.C. § 2255(a). A pro se movant, such as Petitioner, is entitled to have his arguments reviewed with appropriate consideration. See Gordon v. Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978). An evidentiary hearing is appropriate where petitioner “has pled facts that, if established, entitle him to relief, and there is a material dispute regarding those facts.” Higgs v. United States, No. PJM 98-3180, 2010 WL 1875760, at *63 (D.Md. Apr.6, 2010); accord United States v. Yearwood, 863 F.2d 6, 7 (4th Cir. 1988), abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010).

         If a claim could have been raised on direct appeal, and was not, the general rule is that “claims not raised on direct appeal may not be raised on collateral review[.]” Massaro v. United States, 538 U.S. 500, 504 (2003). In addition, a petitioner “cannot ‘circumvent a proper ruling on direct appeal by re-raising the same challenge in a § 2255 motion.'” United States v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013) (quoting United States v. Linder, 552 F.3d 391, 396 (4th Cir. 2009)) (alteration omitted).

         III. Ineffective Assistance of Counsel

         To prevail on a claim of ineffective assistance of counsel, a petitioner needs first to show that “counsel's efforts were objectively unreasonable when measured against prevailing professional norms.” Frazer v. South Carolina, 430 F.3d 696, 703 (4th Cir. 2005). In evaluating objective unreasonableness, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]” Strickland v. Washington, 466 U.S. 668, 689 (1984). In addition, a petitioner must show prejudice meaning that “there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different.” Strickland, 466 U.S. at 694.

         A. Advice on the Guilty Plea

         Counsel can be ineffective in the plea negotiation process for failing to inform a defendant about the prosecution's offer of a guilty plea. Missouri v. Frye, 566 U.S. 134, 145 (2012) (“This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”). Counsel can also be ineffective during plea negotiations if counsel provides erroneous advice about the relative advantages and disadvantages of a plea agreement as opposed to going to trial. Lafler v. Cooper, 566 U.S. 156, 163 (2012) (“[T]he performance of respondent's counsel was deficient when he advised respondent to reject the plea offer on the grounds he count could not be convicted at trial.”).

         Petitioner was offered a plea agreement prior to the first trial. Petitioner chose not to accept the offer. (ECF No. 138, at 17-18). The first trial resulted in a mistrial. (ECF No. 118). Petitioner does not allege he ...

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