United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
an eight-day trial, m October of 2014, a jury found the
pro se Petitioner Bruce Winston
("Petitioner" or "Winston") guilty of one
count of Conspiracy to Distribute and Possess with Intent to
Distribute Cocaine, in violation of 21
U.S.C. § 846, and one count of
Possession with Intent to Distribute Cocaine, in violation of
21 U.S.C. § 841(a)(1). (ECF Nos. 1, 201.) This Court
sentenced Winston to the mandatory minimum sentence of
one-hundred twenty (120) months imprisonment (ECF No. 241 at
70), which was below the advisory guideline range of 151 to
188 months. Winston subsequently appealed his conviction to
the United States Court of Appeals for the Fourth Circuit,
which affirmed this Court's judgement. United States
v. Winston, 651 Fed.App'x. 237 (4th Cir. 2016).
pending before this Court is the Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. §
2255. (ECF No. 254.) For the following reasons,
Petitioner's Motion to Vacate, Set Aside, or Correct
Sentence Under 28 U.S.C. § 2255 (ECF No. 254) is DENIED.
background facts of this case were set forth in this
Court's Memorandum Opinion on September 23, 2014.
United States a Hernia, RDB-13-639, 2014 WL
4784321 (D. Md. Sept. 23, 2014). To summarize, at trial the
Government proved that beginning in May of 2013 and
concluding in June of 2013, Winston conspired with Jorge
Herevia and others to transport cocaine from Texas to
Maryland. Specifically, the Government presented evidence
that Herevia placed the cocaine, as well as 530, 000, inside
a secret compartment inside Winston's truck. The
Government proved at trial that Winston was present when the
secret compartment was installed while the truck was at his
farm in Arkansas. Furthermore, the Government proved that
Winston assisted in the installment of the secret
compartment. (ECF No. 216.)
October 9, 2014, a jury convicted Winston of one count of
Conspiracy to Distribute and Possess with Intent to
Distribute Cocaine, in violation of 21 U.S.C. § 846, and
of one count of Possession with Intent to Distribute Cocaine,
in violation of 21 U.S.C. § 841(a)(1). (ECF No. 201.)
For both counts, the jury found that the amount of cocaine
involved was more than five kilograms. (Id.)
Subsequently, this Court sentenced Winston to one-hundred
twenty (120) months imprisonment. (ECF No. 241 at 70.)
appealed to the Fourth Circuit. United States v.
Winston, 651 Fed.App'x. 237 (4th Cir. 2016). On
appeal, Winston argued that: (1) the district court
improperly denied an earlier Motion to Suppress Evidence, and
(2) die district erred in admitting evidence in accordance
with Federal Rule of Evidence 404(b). Id. at 238.
The Fourth Circuit affirmed the district court on both
issues. Id. On July 10, 2017, Winston filed the
subject Motion to Vacate, which is presently before this
Court. (ECF No. 254.)
Court recognizes that Petitioner is pro se and has
accorded his pleadings liberal construction. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007). Under 28 U.S.C.
§ 2255, a prisoner in custody may seek to vacate, set
aside, or correct his sentence on four grounds: (1) the
sentence was imposed in violation of the Constitution or laws
of the United States, (2) the court was without jurisdiction
to impose the sentence, (3) the sentence was in excess of the
maximum authorized by law, or (4) the sentence is otherwise
subject to a collateral attack. Hill v. United
States, 368 U.S. 424 (1962) (citing 28 U.S.C. §
2255). Further, "an error of law does not provide a
basis for collateral attack unless the claimed error
constituted 'a fundamental defect which inherently
results in a complete miscarriage of justice."'
United Stales v. Addonizio, 442 U.S. 178, 185 (1979)
(quoting Hill, 368 U.S. at 428).
Motion to Vacate, Winston argues that his sentence should be
vacated for three reasons. First, Winston alleges that jury
members spoke with an "Investigator" in a restroom
while on break during his trial. In analyzing this claim,
this Court notes that the Fourth Circuit uses a
"three-step process for analyzing allegations of
extrajudicial juror contact" in criminal cases.
United States v. Cheek, 94 F.3d 136, 141 (4th Cir.
1996). The first step requires the moving party to
"introduc[e] competent evidence that the extrajudicial
communications or contacts were more than innocuous
interventions." Id. (citations and internal
quotation marks omitted). If the moving party meets the first
step, the second step presumes that the communications were
prejudicial. Id. (citing Remmer v. United
States, 347 U.S. 227, 229 (1954)). Finally, the third
step shifts the burden to the non-moving party to prove that
the communications were not prejudicial. Id.
(citations omitted). In the present case, Winston not only
fails to proffer sufficient evidence showing that such
conversations took place, but also fails to claim that such
discussions were not innocuous. Therefore, Winston's
first claim that jurors were influenced by extrajudicial
communications is without merit.
Winston contends that the Assistant Federal Public Defender
(AFPD) who was initially appointed to represent him was
"[r]emoved two weeks before trial, [and Winston] was
given two young men that had never been to trial." (ECF
No. 254 at 4.) This statement is incorrect. Throughout this
case Winston was represented by the Office of the Federal
Public Defender of Maryland. Both attorneys who represented
Winston at trial had previously represented defendants before
this Court. See, e.g., United States v. Graham,
RDB-11-94; United States v. Currie, RDB-10-532;
United States v. Romero, GLR-11-0527. Therefore,
this claim is without merit.
Winston argues that his appellate counsel "brought up
none of the points [that Winston] told him to." (ECF No.
254 at 4.) After construing this pleading liberally, as
required by Erickson, it appears Winston is claiming
ineffective assistance of counsel. To state a claim for
relief based on a Sixth Amendment claim of ineffective
assistance of counsel, a petitioner must satisfy the
two-prong test set forth in Strickland v.
Washington,466 U.S. 668, 671 (1984). "The
defendant bears the burden of proof as to both prongs of the
standard." United States v. Luck,611 F.3d 183,
186 (4th Cir. 2013). Accordingly, "vague and conclusory
allegations contained in a § 2255 petition may be
disposed of without further investigation by the District
Court." United States v. Dyess,730 F.3d 354,
359 (4th Cir. 2013) (citations and internal quotation marks
omitted). In the present case, Winston does not articulate
the points that he wanted his appellate attorney to address.
Therefore, Winston fails to meet his burden of proof for
demonstrating that his appellate attorney's performance
was inadequate and that such performance was prejudicial.