United States District Court, D. Maryland
Richard D. Bennett United States District Judge.
September 18, 2015, a jury convicted Petitioner Lincoln
Normando Moquete of conspiracy to distribute and possess with
intent to distribute five or more kilograms of cocaine, 21
U.S.C. § 846, and possession with intent to distribute
five kilograms or more of cocaine, 21 U.S.C. § 841. (ECF
Nos. 26 and 80.) On December 15, 2015, Petitioner was
sentenced to 144 months to run concurrent on each count. (ECF
No. 100.) Petitioner subsequently appealed his conviction,
raising several arguments, which the United States Court of
Appeals for the Fourth Circuit denied. (ECF Nos. 102 and
115); see also United States v. Moquete, 669
Fed.Appx. 179 (4th Cir. 2016).
November 1, 2017, Moquete, now incarcerated at FCI
Williamsburg in Salters, South Carolina, filed this action to
vacate his sentence under 28 U.S.C. §
2255. (ECF No. 118.) The Government responded in
opposition to Moquete's motion to vacate. (ECF No. 120.)
Having reviewed the parties' submissions, this Court
finds that no hearing is necessary. See Local Rule
105.6 (D. Md. 2016). For the reasons set forth below,
Petitioner's Motion (ECF No. 118) is DENIED.
March 9, 2010, Maryland State Police observed a
co-conspirator of the Petitioner operating a rental car in
excess of the posted speed limit on I-95 in Cecil County,
Maryland. (ECF No. 60-1 at 8.) A canine narcotics detector
alerted to the presence of narcotics in the vehicle.
(Id.) A subsequent search of the vehicle produced a
duffle bag containing thirteen kilograms of cocaine parceled
into two bundles of bricks-one containing eight kilograms of
cocaine and another containing five kilograms of cocaine.
(Id.) The individual bricks were wrapped in plastic
or plastic bags and then wrapped together in plastic wrap.
(Id.) The cocaine was subjected to a latent print
analysis through the Integrated Automated Fingerprint
Identification System (“IAFIS”) wherein an
examiner identified nineteen fingerprints belonging to
Petitioner. (ECF No. 110 at 175.)
co-conspirator ultimately pled guilty to federal drug
offenses and was sentenced to 120 months' imprisonment.
(ECF No. 109 at 62-63.) Petitioner's co-conspirator later
inculpated another co-conspirator. (Id. at 66-67.)
This additional co-conspirator identified Petitioner as his
source. (ECF No. 110 at 228.) Petitioner retained private
counsel (ECF No. 51), and the case went to trial on September
14, 2015. (ECF No. 66.) Both co-conspirators testified
against Petitioner at trial. (ECF No. 110.) After a five-day
trial, the jury convicted Petitioner of conspiracy to
distribute and possess with intent to distribute five
kilograms or more of cocaine in violation of 21 U.S.C. §
846 and possession with intent to distribute five kilograms
or more of cocaine in violation of 21 U.S.C. § 841. (ECF
No. 81.) On December 15, 2015, this Court sentenced
Petitioner to 144 months of imprisonment to run concurrent on
each count and five years of supervised release. (ECF No.
100.) On appeal, the Fourth Circuit affirmed Petitioner's
conviction. (ECF No. 115.) On November 1, 2017, Petitioner
moved to vacate his sentence pursuant to 28 U.S.C. §
2255. (ECF No. 118.)
28 U.S.C. § 2255, a prisoner in custody may seek to
vacate, set aside or correct his sentence where: (1)
“the sentence was imposed in violation of the
Constitution or laws of the United States, ” (2) the
court lacked “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.” 28 U.S.C. § 2255. “[A]n
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 States v. Addonizio, 442
U.S. 178, 185 (1979) (quoting Hill v. United States,
368 U.S. 424, 428 (1962)).
Petitioner raises the following claims in his Motion to
Vacate: (1) ineffective assistance of counsel due to
counsel's failure to proffer expert witness testimony to
rebut the Government's fingerprint evidence; and (2)
ineffective assistance of counsel due to counsel's
failure to have a learned treatise read into the record to
rebut the Government's fingerprint evidence. (ECF No.
118-1.) Petitioner argues that, at a minimum, an evidentiary
hearing is required to resolve this Motion. (Id.)
freestanding claim of ineffective assistance of counsel may
properly be asserted for the first time in a § 2255
petition. United States v. DeFusco, 949 F.2d 114,
120-21 (4th Cir. 1991). In order to establish ineffective
assistance of counsel, Petitioner must satisfy the
two-pronged test established in Strickland v.
Washington, 466 U.S. 668, 671 (1984). First, Petitioner
must show that his counsel's performance was deficient
such that it fell below an “objective standard of
reasonableness.” Id. at 688. In assessing
whether counsel's performance was deficient, courts adopt
a “strong presumption” that an attorney's
actions fall within the “wide range of reasonable
professional assistance.” Id. at 689. Second,
Petitioner must show that his counsel's performance was
prejudicial, meaning the defendant was “depriv[ed] . .
. of a fair trial.” Id. at 687. To demonstrate
such prejudice, Petitioner must show there was a
“reasonable probability that, but for counsel's
[alleged] unprofessional errors, the result of the
proceeding[s] would have been different.” Id.
at 694. Both of these prongs must be satisfied for the
Petitioner to obtain the relief he is seeking. Id.
Failure to Proffer Expert Witness Testimony
argues that counsel was ineffective for failing to hire an
expert to rebut the Government's fingerprint evidence.
Petitioner claims that an expert was needed to “present
evidence to the jury on how fingerprint impressions could
have been made on the packaging around the cocaine without
actual, direct contact by Moquete.” (ECF No. 118-1.)
According to Petitioner, such expert testimony would have
“given the jury pause about Moquete's
culpability.” (Id.) This argument constitutes
an attack on counsel's trial strategy. United States
v. Terry, 366 F.3d 312, 317 (4th Cir. 2004)
(characterizing trial counsel's decision not to call a
defense witness as a “strategic decision” and
affording “enormous deference”) (quoting
United States v. Kozinski, 16 F.3d 795, 813 (7th
Cir. 1994)); see also Byram v. Ozmint, 339 F.3d 203,
209 (4th Cir. 2003). When attacking a strategic choice made
during trial, a petitioner must “overcome the
presumption that, under the circumstances, the challenged
action ‘might be considered sound trial
strategy.'” Strickland, 466 U.S. at 689
(quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)). In deciding whether Petitioner has met this
burden, this Court must make a “fair assessment of
attorney performance, ” which “requires that
every effort be made to eliminate the distorting effects of
counsel did not proffer expert testimony to rebut the
Government's fingerprint evidence, counsel did raise the
issue of the potential lateral inversion of fingerprints.
Counsel questioned the Government's ...