United States District Court, D. Maryland
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE
a five-day trial, a jury convicted pro se Petitioner
Wade Coats (“Petitioner” or “Coats”)
of one count of Conspiracy to Distribute and Possess with
Intent to Distribute over 5 Kilograms of Cocaine, in
violation of 21 U.S.C. § 846, and one count of
Possession of a Firearm in furtherance of a Drug Trafficking
Crime, in violation of 18 U.S.C. § 924(c). (Jury
Verdict, ECF No. 143.) Judge Quarles of this
Court sentenced Petitioner to five hundred and
forty (540) months' imprisonment for the drug charge and
sixty (60) months' imprisonment for the firearm charge,
to be served consecutively for a total term of 600 months
with credit for time served. (ECF No. 230 at 2.) Petitioner
subsequently appealed his conviction and sentence to the
United States Court of Appeals for the Fourth Circuit, which
affirmed this Court's judgement. United States v.
Cavazos, Nos. 12-4701, 12-4737, 542 Fed.App'x 263
(4th Cir. Oct. 17, 2013).
March 31, 2015, Petitioner filed a Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255.
(ECF No. 280.) On January 4, 2016, Petitioner also filed a
Motion to Compel Attorney to Surrender Case Files. (ECF No.
295.) Having reviewed the parties' submissions, this
Court finds that no hearing at this time is necessary.
See Local Rule 105.6 (D. Md. 2016). For the reasons
set forth below, Petitioner's Motion to Compel (ECF No.
is DENIED, and Petitioner's Motion to Vacate (ECF No.
280) is DENIED IN PART and STAYED IN PART. Specifically, all
of Petitioner's claims are DENIED except his claim of
ineffective assistance of counsel at sentencing and on
appeal, which this Court hereby STAYS, pending appointment of
counsel for the Petitioner.
background facts of this case were fully set forth in Judge
Quarles' September 30, 2011 Memorandum Opinion and the
Fourth Circuit's October 17, 2013 Memorandum Opinion.
United States v. Cavazos, No. WDQ-09-0333, 2011 WL
4596050 (D. Md. Sept. 30, 2011) (ECF No. 162); United
States v. Cavazos, Nos. 12-4701, 12-4734, 542
Fed.App'x 263 (4th Cir. Oct. 17, 2013). To summarize,
Coats was arrested as a result of observations of his
activity on April 27 and 28, 2009 by Task Force Officers
(“TFOs”) of the Drug Enforcement Administration
(“DEA”). Cavazos, 542 Fed.App'x at
264-65. Specifically, there were five officers involved in
Coats' investigation: Brian Shutt, Dave Clasing, E.T.
Williams, Mark Lunsford, and Derke Ostrow. Id. at
264. The officers were investigating Ronald Brown
(“Brown”), who was suspected of distributing
large amounts of heroin. Id. While observing Brown,
the TFOs observed an exchange between Brown and an individual
later identified as Coats. Id. at 265. After the
exchange, the officers observed Coats carry several bags from
his car into the Marriott Waterfront Hotel in Baltimore,
including a bag he had received from Brown. Id. When
Coats left the hotel, the officers followed him to a seafood
restaurant and cell-phone store before conducting a
Terry stop of Coats' rental car.
Id. During the stop, the officers found a firearm on
Coats' person. Id. at 266. Pursuant to a search
warrant issued by the Circuit Court for Baltimore City,
subsequent searches of Coats' hotel room, the cell-phone
store, a Dodge Caravan connected with co-defendant Jose
Cavazos (“Cavazos”), and other locations related
to Brown's dealings revealed:
(1) $274, 000 in cash in heat-sealed plastic bags, a
heat-sealer machine and bags, a money counter, cell phones,
and a tally sheet from Room 943; (2) a suitcase with $337,
482 in cash from the Dodge Caravan; (3) $16, 520 in cash,
paperwork, heat-sealer bags, and a gun magazine from the
cell-phone store; and (4) 410 grams of cocaine, 238 grams of
heroin, a bag of gel capsules, a gel capper press, scales, a
metal strainer and spoon, and a cell phone from 1112 Harwall
Id. at 266-67.
Jury subsequently charged Coats and co-defendants Brown,
Cavazos, and James Bostic (“Bostic”), with
various offenses related to a conspiracy to distribute
marijuana and cocaine. (ECF No. 66.) Bostic and Brown pleaded
guilty. (ECF Nos. 85; 88.) Coats and Cavazos continued to trial,
and on February 9, 2011, the jury convicted Coats of
Conspiracy to Distribute and Possess with Intent to
Distribute over 5 Kilograms of Cocaine (Count I) and
Possession of a Firearm in furtherance of a Drug Trafficking
Crime (Count III). (See Superseding Indictment, ECF
No. 66; Jury Verdict, ECF No. 143.) Cavazos was also
convicted of Count I. (See Jury Verdict, ECF No.
Coats and Cavazos were awaiting sentencing, on April 25,
2011, the Government provided FBI FD-302 forms (“the
302s”) to Coats and Cavazos for the first time.
Cavazos, 2011 WL 4596050, at *3. The 302s included
notes from FBI agents in Dallas, Texas, related to interviews
they had conducted with Alex Noel Mendoza-Cano
(“Cano”) about drug cartel activity. Id.
Cano testified for the prosecution concerning Cavazos and
Coats' links to the drug conspiracy. Id.
However, the prosecutors did not become aware of the
interviews conducted by the Dallas FBI agents or the 302s
until after trial. Id. Upon receipt, the prosecutors
notified the Defendants. Id.
receiving the 302s, on May 5, 2011, Coats and Cavazos moved
for a new trial. (ECF No. 151.) Judge Quarles determined that
although the new evidence had not been provided to the
Defendants and was favorable to them, it was not material.
Cavazos, 2011 WL 4596050 at *8. He explained,
“[a]lthough [the 302s] might have provided additional
impeachment of Cano, they d[id] not undermine confidence in
the outcome of the trial . . . The jury was aware that Cano
had lied before and was testifying for a benefit.”
Id. Because the jury had sufficient evidence at
trial to determine Cano's credibility, the evidence would
have been merely cumulative. Therefore, on September 30,
2011, this Court denied the Defendants' motion for a new
trial. (ECF Nos. 162, 163.) The Defendants appealed, and the
Fourth Circuit affirmed the District Court's ruling.
Cavazos, 542 Fed.App'x at 270-72.
August 28, 2012, following a contested hearing, Judge Quarles
sentenced Coats to five hundred and forty (540) months'
imprisonment for Count I and sixty (60) months'
imprisonment for Count III to be served consecutively for a
total term of 600 months with credit for time served. (ECF
No. 230 at 2; Sentencing Hr'g Tr., ECF No. 249, at
35-36.) Both Coats and Cavazos appealed their convictions and
sentences to the Fourth Circuit. (ECF Nos. 225, 233.) They
argued on appeal that the district court erred by (1) denying
their pre-trial evidence suppression motions; (2) mishandling
the verdict sheet presented to the jury; (3) refusing to
grant a new trial based on the late disclosure of the 302s;
and (4) imposing substantively unreasonable sentences.
Cavazos, 542 Fed.App'x 263. The Fourth Circuit
affirmed this Court on all grounds. Id. at
Petitioner proceeds pro se, this Court must construe
his pleadings liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007); see also Alley v. Yadkin County
Sheriff Dept., No. 17-1249, 698 Fed.App'x 141 (Mem)
(4th Cir. Oct. 5, 2017) (citing Erickson for the
proposition that “[p]ro se complaints and pleadings,
however inartfully pleaded, must be liberally construed and
held to less stringent standards than formal pleadings
drafted by lawyers”).
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, 426-27 (1962) (citing 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, 368 U.S. at
scope of a § 2255 collateral attack is far narrower than
an appeal, and a “‘collateral challenge may not
do service for an appeal.'” Foster v. Chatman,
___ U.S. ___, 136 S.Ct. 1737, 1758 (2016) (quoting
United States v. Frady, 456 U.S. 152, 165 (1982)).
Thus, procedural default will bar consideration under §
2255 of any matters that “could have been but were not
pursued on direct appeal, [unless] the movant . . . show[s]
cause and actual prejudice resulting from the errors of which
he complains.” United States v. Pettiford, 612
F.3d 270, 280 (4th Cir. 2010) (citing United States v.
Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)).
Timeliness of Petitioner's Motion
one-year statute of limitations applies to § 2255
petitions. 28 U.S.C. § 2255(f). The limitations period
runs from the latest of:
(1) the date on which the judgment of conviction becomes
final; (2) the date on which the impediment to making a
motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action; (3) the date on which the right asserted
was initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
Id.; see also Whiteside v. United States,
775 F.3d 180, 183 (4th Cir. 2014). A conviction becomes final
for the purpose of starting the one-year limitations period
when the opportunity to appeal expires. See Clay v.
United States, 537 U.S. 522, 524-25 (2003); United
States v. Sosa, 364 F.3d 507, 509 (4th Cir. 2004). After
the Fourth Circuit affirmed Petitioner's conviction and
sentence, he appealed to the Supreme Court of the United
States. On March 24, 2014, the Supreme Court denied his
petition for writ of certiorari. Coats v. United
States, 134 S.Ct. 1571 (2014) (Mem). Therefore, his
judgment of conviction became final on March 24, 2014.
Petitioner did not file his Motion to Vacate until March 31,
2015. However, the Government has not challenged the
timeliness of Petitioner's Motion, and this Court accords
his pleadings liberal construction in light of his proceeding
pro se in this matter. Accordingly, this Court will
address the issues raised and will treat the motion as having
been timely filed.
Police Misconduct Claim
Coats asserts generally that he was arrested as a result of
police misconduct. He claims that the DEA TFOs who arrested
him “reverse engineered a drug conspiracy, with
manufactured and false evidence.” (ECF No. 280 at
To support this claim, Coats lists a number of perceived
inconsistencies among facts presented at trial and suggests
that the police failed to investigate certain leads.
(Id.) The Supreme Court has held that there is no
due process violation simply because “the police fail
to use a particular investigatory tool.” Arizona v.
Youngblood, 488 U.S. 51, 58-59, 109 S.Ct. 333 (1988).
This is because “police do not have a constitutional
duty to perform any particular tests.” Id.;
see also United States v. Teran, Nos. 11-4791,
11-4844, 496 Fed.App'x 287 (4th Cir. Nov. 1, 2012)
(determining that the government does not violate
Brady simply by failing “to employ all
investigative techniques”); Werth v. United
States, 493 Fed.App'x 361, 366 (4th Cir. 2012)
(“While the government is obligated to disclose
favorable evidence in its possession, it is not required to
create evidence that might be helpful to the
does not allege that the Government withheld
evidence. Rather, he argues that the Government
should have pursued certain investigatory paths that include:
locating the online rental car agreement for Coats'
rental car; securing video footage from the cellphone
store's surveillance system, the Baltimore City's
surveillance system, and/or the lobby video from the Marriott
Waterfront Hotel; and obtaining Coats' “cell-site
information” from his cell-phone carrier for GPS
information. (ECF. No. 280 at 20.) However, as explained
above, the Government is only required to disclose the
information it actually collects; it does not have a duty to
collect information that may be helpful to a defendant.
also seeks relief based on conduct by former DEA TFO Mark
Lunsford. In September of 2009, a few months after Coats'
arrest, Lunsford was charged with various theft and fraud
offenses related to his duties as a DEA Officer. United
States v. Fisher, 711 F.3d 460, 463 (4th Cir. 2013). One
offense included falsely attributing information to a
confidential informant with whom Lunsford was splitting
reward money. Id. While Lunsford was not charged in
relation to Petitioner's case, during a search warrant of
Lunsford's home, the Government recovered personal items
belonging to Coats, including a watch. (ECF No. 291 at 8.)
claims that this is evidence that all of the
officers in his case “attempted and did conspire to
deprive (sic) Coats and later Jose Cavazos of Money,
Property, Liberty and Life.” (ECF No. 280 at 19.) To
support his argument, Petitioner cites United States v.
Fisher, 711 F.3d 460 (4th Cir. 2013), where the United
States Court of Appeals for the Fourth Circuit held that the
defendant could withdraw his guilty plea after finding that
Lunsford was “responsible for the investigation that
led to the defendant's arrest and guilty plea” and
his conduct “underpinned the search warrant for the
defendant's residence.” 711 F.3d at 469. In
Fisher, the search warrant for the defendant's
home and vehicle had been solely based on Lunsford's
sworn affidavit, whereby he falsely testified that a
confidential informant had told him that the defendant was
distributing narcotics. Id. at 466. As the Fourth
Circuit noted, the case was “extraordinary” and
the facts presented “highly uncommon
circumstances” where gross police conduct went
“to the heart of the prosecution's case.”
Id. at 462, 466. Subsequent to the Fisher
decision, this Court considered a petitioner's claim for
relief based on Lunsford's conduct in Rich v. United
States, Nos. 12-3226, 08-0438, 2013 WL 6055227 (D. Md.
Nov. 14, 2013). In that case, this Court denied
petitioner's claim after finding that unlike in
Fisher, the petitioner “provide[d] no support
for the allegation that Lunsford ‘played a central
role' in [his] investigation.” Id. at *4.
Rich, Petitioner has not shown that Lunsford played
a central role in his investigation. Several different
officers observed Coats' exchange with Brown, his
carrying several bags including one from Brown into the
Waterfront Hotel, and his carrying several bags from the
seafood store into his car. 52 Fed.App'x at 265. The
officers then approached Coats' car, where Officer Shutt
led the conversation. Id. After the officers
determined that Coats lied about being at the hotel and found
a gun on him, Coats was arrested. Id. at 265-66.
Thereafter the officers went back to the hotel and entered
the room identified as Coats' by hotel security.
Id. at 266. In the hotel room, the officers saw
heat-sealed wrapped packages and found Cavazos, who told them
that there was about $200, 000 in the room but that the drugs
were not there ...