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Bundy v. United States

United States District Court, D. Maryland

July 18, 2018



          James K. Bredar Chief Judge.

         I. Procedural History

         The criminal case at issue in this motion to vacate brought pursuant to 28 U.S.C. § 2255 was preceded by a civil case, United States v. $82, 764.83 U.S. Currency et al., Civ. No. JFM-06-2250 (D. Md.). The total amount sought in that civil forfeiture case was $190, 994.24, which the Government alleged constituted proceeds traceable to the sale or exchange of controlled substances. (Id. Compl., ECF No. 1.) Sean Rondell Bundy, the Petitioner in the instant § 2255 case, filed an answer to the civil forfeiture complaint, contested the Government's allegations, and claimed the amounts in question, which had already been seized pursuant to warrant, were lawfully obtained. (Id. Ans., ECF No. 7.) Eventually, in early May 2008, a settlement was reached to release $190, 000 to Bundy by check made payable to his attorney, Russell A. Neverdon, Esq., and for Bundy to relinquish any claim to the remaining $994.24. (Id. May 9, 2008, Status Report, ECF No. 18; Pl.'s Mot. J. Forfeiture, ECF No. 19.) The Court granted the Government's motion for judgment of forfeiture and entered a final order of forfeiture in accordance with the settlement agreement. (Id. May 13, 2008, Order, ECF No. 20.)

         On May 8, 2008, criminal complaints were filed against Bundy and Tyron Sherodd Rich, alleging conspiracy and possession of one kilogram of heroin with intent to distribute. (Crim. No. 08-0226, ECF Nos. 1, 5.[1]) Bundy and Rich both had their initial appearances that day and were ordered detained. (ECF Nos. 3, 4, 7, 8.) On May 13, 2008, the same day that the Court entered the order terminating the civil forfeiture case, Bundy and Rich were indicted for conspiracy to distribute and to possess heroin and cocaine with intent to distribute and for possession of heroin with intent to distribute; the indictment also requested forfeiture from Bundy of three bank accounts, one automobile, three watches, and all property derived from or traceable to the alleged offenses, including, but not limited to, $300, 000; further, the indictment gave notice of the Government's intent to seek forfeiture of substitute assets up to the value of the described property if such were no longer available to satisfy the request for forfeiture.[2](ECF No. 11.) On May 21, 2008, the Government applied for a protective order for the $190, 000 (the amount to be returned to Bundy under the civil forfeiture settlement agreement and final order of forfeiture) as substitute assets and for attachment of them (ECF No. 14), which the Court granted on September 2, 2008 (ECF Nos. 41, 42).[3] After a hearing, the Court also granted the Government's motion (ECF No. 39) to strike Neverdon's appearance as Bundy's retained counsel because Neverdon's assertion of a 33-1/3% contingency-fee interest in the $190, 000 created a conflict of interest with his representation of Bundy in the criminal case. (ECF Nos. 41, 42.) (The Government has acknowledged that its prosecutor in the criminal case did not learn that Bundy was a claimant in a civil case until after the civil case had been settled and after the indictment had been filed. (Govt's Resp. to Mot. 2255 at 4-5, ECF No. 235.))

         A superseding indictment was filed September 9, 2008, adding one count against each defendant for possession of firearms after having been convicted of a felony and adding a count against Bundy for distribution of and possession of cocaine with intent to distribute. (ECF No. 43.) Thereafter, the Federal Public Defender was appointed to represent Bundy. (Oct. 17, 2008, Order, ECF No. 49.) On November 24, 2008, Rich pled guilty to the conspiracy count.[4](ECF No. 54.) Although offered essentially the same plea deal as Rich's (Bundy Mot. 2255, Ex. C[5]), Bundy did not agree to it and instead sought a continuation of the motions hearing and trial, which had been set for December 1, 2008 (ECF No. 53). That motion was granted and the motions hearing and trial were reset for January 26, 2009. (ECF No. 55.)

         On January 7, 2009, the Government filed its Notice / Information of Enhanced Penalties pursuant to 21 U.S.C. § 851, indicating that Bundy had two prior convictions for felony drug offenses and requesting that Bundy be subjected to the enhanced penalties provided in 21 U.S.C. § 841(b)(1)(A). (ECF No. 60.) On January 26, 2009, the Court conducted a motions hearing, ruled on some of Bundy's pretrial motions, deferred ruling on others until trial, ordered Bundy's public defenders to submit a brief as to whether they had a conflict of interest, set a briefing schedule for the Government's response and Bundy's reply, and postponed the trial. (ECF No. 68.) Bundy's counsel thereafter filed an unopposed motion to withdraw because of a conflict of interest, which was granted. (ECF Nos. 71, 74.) Michael D. Montemarano, Esq., was then appointed under the Criminal Justice Act to represent Bundy. (ECF No. 75.) The motions hearing and trial were reset to begin April 13, 2009. (ECF No. 81.)

         On February 25, 2009, a second superseding indictment was filed. (ECF No. 86.) This version removed references to Rich, removed the felon-in-possession charge against Rich, removed the distribution-of-cocaine count against Bundy, and added the $190, 994 seized earlier from Bundy to the forfeiture notice. Upon defense counsel's motion, the trial was continued to September 21, 2009. (ECF Nos. 90, 91.) In June 2009, Montemarano sought and received leave of court to file a state court petition for writ of error coram nobis challenging one of Bundy's prior state convictions. (ECF No. 96.) On August 5, 2009, Bundy pled guilty to the conspiracy count in the superseding indictment. (ECF No. 97.) Sentencing was set for January 7, 2010. (ECF No. 100.) Also on August 5, 2009, the Court signed a preliminary forfeiture order, including the assets seized previously.[6] (ECF No. 101.) The order indicated the Court would hold a hearing at the sentencing to determine any claims by Bundy or third parties that the assets should not be forfeited. Neverdon filed his petition for claim as to his fees still owing in the civil forfeiture case. (ECF Nos. 102, 103.)

         The sentencing hearing was continued several times while the coram nobis proceedings were pending in state court (ECF Nos. 105, 111, 114), but eventually the Court denied further continuances and held the hearing on April 21, 2011 (ECF Nos. 117, 120). Bundy was sentenced to 292 months in prison and a supervised release term of ten years. (ECF No. 123.) The same day, the Court entered a money judgment of $300, 000 against Bundy in the final order of forfeiture that was effective as to all assets sought by the Government except for $45, 000, which was released to Neverdon to satisfy his third-party claim. (ECF No. 122.)

         Notices of appeal were filed by Bundy pro se (ECF No. 125) and Montemarano (ECF No. 127). Montemarano then filed a Motion to Vacate Prior Forfeiture Orders and Demanding Return of All Seized Property. (ECF No. 135.) When the Government had not responded to Montemarano's motion, he filed a motion for default judgment. (ECF No. 146.) The Court determined it had no jurisdiction to rule on the motions, having been divested of it when the notices of appeal were filed; consequently, the motions pertaining to forfeiture were denied without prejudice. (ECF Nos. 164, 165.) Bundy's conviction and sentence were affirmed on appeal; the Fourth Circuit Court of Appeals noted Bundy failed to contest the forfeiture at any stage of the proceeding, thereby invoking the plain-error doctrine, but, further, noted no error could be found relating to forfeiture; additionally, the Court agreed the District Court was without jurisdiction to entertain the motion to vacate the forfeiture orders and the motion for default judgment once a notice of appeal had been filed. United States v. Bundy, No. 11-4464 (4th Cir. Sept. 11, 2012). The Supreme Court denied Bundy's petition for writ of certiorari on February 19, 2013. Bundy v. United States, No. 12-8207. Bundy's current § 2255 motion was mailed from prison on January 22, 2014, and therefore deemed filed on that date. (ECF No. 210.) See Houston v. Lack, 487 U.S. 266 (1988) (prisoner's filing date is deemed same as date prisoner puts material into prison mailbox). The motion was docketed in this Court on January 27, 2014. It is timely filed.

         No hearing is necessary. 28 U.S.C. § 2255(b), (c); Rules Governing Section 2255 Proceedings, Rule 8(a); Local Rule 105.6 (D. Md. 2016). The motion will be denied.

         II. Standard for Motion under 28 U.S.C. § 2255

         Four grounds for relief are provided in § 2255 for one who is claiming a right to be released:

1) The sentence was imposed in violation of the Constitution or United States law;
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 collateral attack.

         The Supreme Court has said that, unless a claim alleges either a lack of jurisdiction or a constitutional error, then the scope of collateral attack is far more limited. United States v. Addonizio, 442 U.S. 178, 185 (1979), abrogated on other grounds by amendment to Federal Rule of Criminal Procedure 35(b). Thus, an error of law cannot be the basis for collateral attack unless the claimed error constituted “‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Id. at 185 (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Likewise, errors of fact may only serve as the basis for § 2255 relief “‘where the errors [are] of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid.'” Id. at 186 (quoting United States v. Mayer, 235 U.S. 55, 69 (1914)).

         III. ...

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