United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
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.
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).
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).
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).
Standard for Motion to Vacate Pursuant to 28 U.S.C. §
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).
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).
Ineffective Assistance of Counsel
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.
Advice on the Guilty Plea
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
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 ...